Monday, December 15, 2008


Managing the economic meltdown

Canadian lawyers face new challenges

By Christopher Guly
December 19 2008

As Canadian lawyers watch their American colleagues lose clients — or their jobs — in the current economic meltdown south of the border, Ontario’s Dimitri Lascaris is acting on the litigation fallout from the U.S. financial crisis.

Last month, the partner in the class action department of Siskinds LLP in London, Ont. filed a proposed $550-million class action in the Ontario Superior Court against one of the world’s largest insurance companies, American International Group (AIG) Inc., its U.K.-based subsidiary, AIG Financial Products Corp. (AIGFP) and current and former directors and officers of both corporate entities, claiming that Canadian investors in AIG suffered massive losses.

The application is the first to use a provision of Part 23.1 of the Ontario Securities Act, which allows investors to sue companies that have a “real and substantial connection” to Ontario even if they are not “reporting issuers” in the province.

The class action arises out of a type of derivative AIGFP was trading, known as credit default swaps, and the resulting crash in AIG’s stock price when it became known that the credit default swaps exposed the company to “crippling liabilities,” placing AIG on the verge of collapse, said Laskaris in an interview.

“Public statements by the management of AIG to investors about the risks associated with credit default swaps and the way the company was valuing them are at issue in our lawsuit on behalf of Canadians who purchased shares of AIG during the period [Nov. 10, 2006 to Sept. 16, 2008] when AIG was making alleged misstatements about its credit default swap business,” Laskaris said.

He explained that thousands of Canadians could be involved in the class action against AIG, which is now effectively owned by U.S. taxpayers following a $150-billion US government bailout loan.
The Siskinds-led action will seek certification of a national class.

Expect more of these types of suits in the future, said Lascaris, who told The Lawyers Weekly that his firm is considering a number of class-action cases against financial institutions — most of them Canadian.

To avoid the current type of financial mess and credit crunch in the future, Lascaris said there needs to be radical reform, beginning with executive compensation gone “wildly out of control, not only in terms of the amount of money people get paid to operate unprofitable companies, but also in the incentive schemes to generate unsustainable but extraordinary short-term profits for executives that expose a corporation to considerable risk and leave shareholders to pick up the bill while they go off into the sunset as multimillionaires.”

He would like to see governments prohibit executive compensation that awards lucrative bonuses based on a company’s short-term performance — or, at an extreme, to impose a cap on executive compensation entirely.

But Lascaris added the latter might not be necessary if shareholders in public companies were able to exercise “meaningful control” over executive salaries and compensation.

However, University of Ottawa law professor Vern Krishna said corporate directors are elected to determine executive compensation, and giving shareholders such power is both “idealistic” and “unworkable” since not all investors have any understanding of management issues, as an example. As well, Krishna pointed out that in a free-market system, governments cannot oversee compensation in private companies unless there’s a plan to transfer their ownership to the state.

“People always say why doesn’t the government regulate as if it’s the cure-all for every ailment that occurs. It isn’t. Government has to walk a fine line between completely hands-off and being overly intrusive,” said Krishna, who also serves as tax counsel in the Ottawa office of Borden Ladner Gervais LLP.

He explained that one of the causes of the current financial crisis in the U.S. was the Clinton administration’s repeal in 1999 of the 1933 Glass-Steagall Act — legislation that separated commercial banks from those involved in investments.

“The political impetus for sub-prime mortgages stemmed from President Clinton’s desire and policy initiatives to help low-income families,” Krishna said.

The “perfect storm” created by the current economic downturn could generate considerable legal action in several practice areas, such as international trade and investment as well as litigation resulting from a potential escalation of cross-border trade disputes, according to McCarthy Tétrault’s John Boscariol, who heads the firm’s international trade and investment law group and is a partner in the litigation group in Toronto.

“When there are slowdowns, particularly in the context of a crisis, governments tend to erect trade barriers in an effort to protect employees and manufacturing in their country — measures that could violate obligations under trade agreements,” said Boscariol, who chairs the Ontario Bar Association’s international law section and serves as co-chair of the Canada committee for the American Bar Association (ABA)’s international law section.

Already, there are concerns that incoming U.S. President Barack Obama and his Democrat colleagues in Congress could spark one of the largest protectionist initiatives in recent memory. That in turn could lead to other actions on this side of the border.

“When markets slow down, companies bring forward more trade remedy cases, more countervail cases and more anti-dumping cases,” said Boscariol. “When companies start to suffer, they tend to blame imports.”

He adds that with massive government subsidization underway in the U.S., there could be legal challenges in Canada over whether such subsidies run afoul of U.S. trade obligations. So far, the European Union “has fired a warning shot over the bow,” indicating that it would be prepared to take the U.S. to the World Trade Organization if the U.S. government proceeds with a financial bailout of its auto industry and it’s found to have violated international trade law.

With all of these possible disputes on the horizon, some lawyers could be flooded with work.

But there will be slowdowns too, such as in the area of mergers and acquisitions where activity on the private equity side has “slowed to a trickle,” according to Paul Crampton, a partner in the competition and antitrust law group in the Toronto office of Osler, Hoskin & Harcourt LLP and a member of the steering group of the ABA’s international antitrust committee.

He said that some strategic buyers are also finding it difficult to access financing from financial institutions to lend them money. “The other problem is that with the equity markets bouncing around, a target’s market cap is moving all over the place. And if the buyer wants to use his own stock as part of the condition for the deal, that stock is also moving around,” said Crampton, whose practice focuses largely on international mergers and federal legislation on investments as related to the acquisition of Canadian businesses. “In the current economic uncertainty, trying to project future cash flow and earnings is difficult because it’s not quite clear how severe the recession is going to be in the U.S. and how bad a cold or cough Canada will get from it.”

And then there’s the human capital aspect of the current economic crisis, which Toronto immigration lawyer Sergio Karas is witnessing.

With the price of crude oil spiralling downward, Shell, BP and other major oil and gas exploration companies are either scaling back, slowing down or cancelling projects in Alberta’s tar sands. As a result, they will need fewer foreign skilled workers, who happen to be Karas’ clientele.

“Experts say it costs anywhere from $38 to $80 per barrel to make heavy crude from the oil sands economically viable, and only certain refineries have the capacity to handle that heavy crude,” said Karas, who is certified by the Law Society of Upper Canada as a specialist in Canadian citizenship and immigration law, and serves as chair of the Ontario Bar Association’s citizenship and immigration section and co-chair of the International Bar Association’s immigration and nationality committee.

“It costs the Saudis under $10 U.S. to get oil out of the ground and they produce light sweet crude, which is easy to refine. If there’s less market demand for crude, why would companies invest billions of dollars in the oil sands?”

He explained that employment-related immigration would also suffer as the crisis facing Canada’s automobile industry worsens and auto-parts makers, which rely on foreign labour, will freeze hiring.
Karas predicts that overall the country’s entire immigration system will face tremendous pressure

Saturday, November 29, 2008


Immigration levels to be maintained

Faster Visas; In-demand skills will speed process for applicants

Tiffany Crawford, Canwest News Service
Published: Saturday, November 29, 2008

Despite uncertain economic times, Ottawa announced plans yesterday for Canada to take in up to 265,000 new permanent residents in 2009 and to speed up the processing of applications for potential new Canadians in dozens of high-demand occupations.

At a news conference in Toronto, Immigration Minister Jason Kenney said while countries such as Australia, Germany and England are cutting back on the number of people they allow to immigrate, Canada will maintain its immigration levels.

Under the plan, people wishing to move to Canada who work in 38 highly skilled job fields, such as health, finance and the oil industry, will go to the front of the line. That means skilled immigrants could have their visas processed in six to 12 months instead of having to wait five to six years.

"Nurses for instance, are needed whether you are in Nunavut or Vancouver or Toronto," said Mr. Kenney, adding that Canada is one of the few G7 countries that still has labour shortages, despite the economic downturn.

"Having said that, we will have to monitor the economy as it develops and, of course, we reserve the right to modify our policy if need be."

However, critics argue that when the government consulted with the provinces and with labour representatives, it did not take into account how deeply the global economy would fall.

Sergio Karas, chairman of the citizenship and immigration section of the Ontario Bar Association, believes the list of skilled workers gives potential new Canadians the impression there are jobs when those jobs could soon disappear, a problem he says that will "create chaos."

"We are going to be granting residency like lollipops and we're going to encourage them to come to Canada because they are on the list and we do not know, given the economic situation. We're giving them the impression that there are jobs to be had," he said.

While some occupations on the list, such as doctors and nurses, do not relate to the economic crisis, Mr. Karas said most are technical jobs that may be affected by the downturn. And he cited positions in Alberta's oilsands as an example. He suggests the government speed up the admission of temporary workers rather than hand out permanent residencies.

But Mr. Kenney said a backlog in foreign applicants has grown to 900,000 cases, up from 50,000 in 1993. He said of those, 600,000 people waiting in the queue are in the skilled-worker category.

"This is unacceptable and we need to take action," said Mr. Kenney.

The Minister said the government also will accelerate the immigration process for people who have an offer of employment or have already been living legally in Canada for one year as a temporary foreign worker or international student.

Mr. Kenney said the list of 38 occupations was developed after consultations with the provinces and territories, business and labour.

The Liberals have criticized the immigration reforms, arguing everyone should be treated on a first-come, first-served basis.

The Immigration Department said it expects 156,600 immigrants in the economic category; 71,000 in the family category; and 37,400 in the humanitarian category.

The Immigration Department also has expanded its Web site -- -- in an effort to make it easier for people to navigate the range of immigration options open to them.

Friday, November 28, 2008


Minister Kenney Announces Immigration Levels for 2009; Issues Instructions on Processing Federal Skilled Workers

OTTAWA, ONTARIO--(Marketwire - Nov. 28, 2008) - Canada will stay the course on immigration in 2009, welcoming between 240,000 and 265,000 new permanent residents, Jason Kenney, Minister of Citizenship, Immigration and Multiculturalism, announced today.

"While countries such as the United Kingdom and Australia are talking about taking fewer immigrants, our planned numbers for 2009 are on par with last year and are among the highest for this country over the past 15 years," Minister Kenney said. "The numbers reflect a continued commitment to an immigration program that balances Canada's economic, humanitarian and family reunification goals."

The 2009 plan includes up to 156,600 immigrants in the economic category; 71,000 in the family category; and 37,400 in the humanitarian category.

Minister Kenney also announced another step in measures to improve the immigration program's responsiveness to Canada's labour market. Retroactive to February 27, 2008, the date specified by the Federal Budget, the Action Plan for Faster Immigration includes issuing instructions to visa officers reviewing new federal skilled worker applications to process those from candidates who:

- are in 38 high-demand occupations such as health, skilled trades, finance and resource extraction; or

- have an offer of arranged employment or have already been living legally in Canada for one year as a temporary foreign worker or international student.

The list of 38 occupations was developed after consultations with the provinces and territories, business, labour and other stakeholders. New federal skilled worker applications that do not meet the eligibility criteria outlined above will not be processed, and the application fee will be fully refunded. This, along with funds set aside in the 2008 Budget to improve the immigration system, will stop the backlog from growing and will start to draw it down.

"The eligibility criteria apply only to new federal skilled worker applicants and will not affect Canada's family reunification or refugee protection goals," said Minister Kenney. "Applicants who aren't eligible for the federal skilled worker category may qualify under another category, such as the Provincial Nominee Program, or as temporary foreign workers, which could then put them on a path to permanent residency through the new Canadian Experience Class. There are many ways to immigrate to Canada."

The Department has expanded its website in an effort to make it easier for people to navigate the range of immigration options open to them. The site now includes a specific section for employers ( and a new interactive tool ( that matches information provided by potential applicants with immigration programs that best suit their circumstances.

"We expect new federal skilled worker applicants, including those with arranged employment, to receive a decision within six to 12 months compared with up to six years under the old system," said Minister Kenney. "All other economic class applications-including applicants chosen by Quebec, provincial nominees, the Canadian Experience Class, and live-in caregivers-will continue to be given priority."

These improvements, coupled with a number of recent initiatives that include the introduction of the Canadian Experience Class, bring Canada in line with two of its main competitors for highly skilled labour: Australia and New Zealand. Both of these countries have eliminated their backlogs and have systems that deliver final decisions for economic applicants within a year.

"The recent steps this Government has taken to improve our immigration system will help ensure that Canada remains competitive internationally and responsive to labour market needs domestically," said Minister Kenney.

Tuesday, November 25, 2008


New migrant class draws few

Program to retain skilled immigrants attracts just 210 applicants since its launch in September

November 24, 2008
Nicholas Keung
Immigration/Diversity Reporter

A highly touted new immigration program has been hit by slow response from prospective skilled migrants and may fail to bring in the targeted 8,000 newcomers with Canadian academic credentials and work experience.

Since the program's inception in September, Citizenship and Immigration Canada has only received 210 applications under the Canada Experience Class, a new category designed to retain temporary foreign workers or foreign students as permanent residents with established credentials in Canada.

While some immigration lawyers say it is too early to gauge the initiative's popularity among immigration applicants, others are worried the economic meltdown would deny these workers and students the job experience they need to qualify.

"Let's face it. These people are trying to get into entry-level jobs. Few of them have the Canadian experience they need and they will be competing with Canadian workers who have been laid off," said lawyer Sergio Karas, chair of the Ontario Bar Association's immigration and citizenship section. "How can an employer justify hiring foreign students and workers while he's downsizing the workforce?"

A foreign worker must have at least two years of full-time Canadian work experience in managerial, professional, technical occupations or skilled trades to qualify for the program. A foreign graduate from a Canadian post-secondary institution needs a minimum one-year full-time work experience.

The initiative was part of Ottawa's answer to the decades-old "doctor-driving-cab" conundrum faced by immigrants whose foreign credentials are not recognized by Canadian employers. The plan is also expected to cut processing time since most applicants are already in Canada, presumably employed, allowing for easier access.

Toronto immigration lawyer Mario Bellissimo, who has a few such applications in the works, said slow response to the program – based on a pass-fail system as opposed to points – can be attributed in part to a language test requirement. "People ... need to prepare themselves psychologically and to study."

While many potential applicants may need more time to meet job experience requirements, lawyer Robin Seligman said those who've left Canada but still would qualify within a year after departing may be unaware of the program. "Others ... could have applied under other categories and decided not to file yet another immigration application under CEC," said Seligman.

Friday, November 14, 2008

CANADA: Sergio R. Karas chairs seminar on Employment and taxation law for Immgration lawyers

Visalaw International lawyer Sergio R. Karas chaired a successful seminar for the Ontario Bar Association on November 12,2008, on the topic "Making the right move: Employment and taxation law issues for immigration lawyers". The seminar was extremely well received and attended by close to fifty lawyers from accross Canada.


This is quite interesting. Regardless of whether or not the accuses is Innocent or guilty, it is amazing that a member of the PFLP terrorist organization was granted permanent residency in Canada, and even citizenship later! Who scrutinizes these applications? Are they incompetent or just stupid?As a member of a terrorist group, this person should have NEVER been allowed to set foot in Canada if immigration law had been enforced, let alone grant him citizenship. This is not the first case involving PFLP terrorists: Mahmoud Mohammad Issa Mohammad, a PFLP terrorist convicted in Greece after a plane hijacking in Athens, who gained residency in Canada after hiding his true identity, is still in Canada fighting deportation back to Lebanon on "humanitarian" grounds.

Synagogue bombing suspect vows to fight


From Friday's Globe and Mail

November 14, 2008 at 1:21 AM EST

Until last year, Hassan Diab was leading the quiet life of a Canadian sociology professor.

Prof. Diab was teaching at both Carleton University and the University of Ottawa, was said to be a popular colleague and teacher. After leaving the violence of his native Lebanon and earning his doctorate in the United States, Prof. Diab, 54, received his Canadian citizenship and appeared to settle into Ottawa.

There, friends said he was a secular man with an interest in sociology and Middle East studies, and was not without a warm side.

"He has a great rapport with students," said Carleton professor Nahla Abdo, a friend of Prof. Diab's. "He's intelligent, he's smart, he's witty. … I really think highly of his academic skills."

But just before noon on Thursday, the RCMP showed up at a home in Gatineau, Que., and arrested Prof. Diab on behalf of French authorities, who allege he was an integral part of the bombing of a Paris synagogue 28 years ago. That 1980 attack, involving a bomb hidden in the saddlebags of a motorcycle parked outside the synagogue during a Sabbath service, killed three French men and an Israeli woman. It sparked thousands of French citizens to protest against the targeted attack on the Jewish community, France's largest since the Second World War.

Today, Prof. Diab will appear in court in an extradition hearing. He steadfastly maintains his innocence, saying he wasn't in Paris at all that year, his name is very common, and that French investigators simply have the wrong man.

"It's a case of mistaken identity," his lawyer, René Duval, told The Globe last night. "I'm telling you he's innocent, and we'll fight that up to the Supreme Court of Canada."

The first allegations against Prof. Diab surfaced last November, when a French newspaper, Le Figaro, received a leak that he built the bomb in the 1980 attack. Citing French sources, the paper has since said that France's overall case includes tenuous evidence such as a handwritten note and fingerprints on a rental car. Prof. Diab was a member of a Palestinian terrorist group at the time of the attack, the paper also alleges, citing a French arrest warrant.

For Mr. Diab, life hasn't been the same since. He has been harassed, followed, and had one person attempt to break into his apartment, his lawyer alleges. None of the specific charges against him have been made openly and French authorities have not attempted to contact Mr. Duval. In today's hearing, he hopes to hear the charges on which the French hope to extradite Prof. Diab.

"They have to make a case that he should be detained, so they're going to have to show some of their cards," he said. "How would you like to be dragged into public scrutiny for something you haven't done, but is extremely serious nowadays?"

The Justice Department approved the "provisional arrest warrant" as per the extradition agreement between France and Canada, spokesman Christian Girouard said. A Canadian judge approved the move after reviewing basic evidence in the case, he added.

RCMP then carried out the arrest at a residence in Gatineau and held Prof. Diab in Ottawa overnight, Corporal Jean Hainey said.

French officials say anti-terrorist judges Marc Trevidic and Yves Jannier travelled to Canada earlier this week in hopes of advancing their inquiry into the bombing. There was no comment on that by the Justice Department or the RCMP in Ottawa.

The Canadian Jewish Congress, while cautioning that the allegations against Prof. Diab aren't proven, applauded French authorities for continuing the investigation.

"They have followed this case relentlessly to this international arrest warrant, and I think it gives a strong message, and a very needed strong message in the post-9/11 world," CJC chief executive Bernie Farber said.

After today's scheduled hearing, French authorities will have 45 days to lay out a more detailed case against Prof. Diab. Pending approval of that evidence by the Justice Department, a Canadian judge would have to approve an extradition order, which the Minister of Justice would then have to approve.

With a report from The Canadian Press

Friday, October 24, 2008


Another Provincial Nominee Program (PNP) has come under scrutiny, this time the small Province of Prince Edward Island's effort to attract immigrants is under the gun. This follows on the heels of the suspension of the Nova Scotia entrepreneur PNP, which closed after a scandal. I have always opposed PNPs as useless for the economy,. costly to the immigrants, and attracting the wrong type of people, who do not make a decision based on sound economics but rather on the basis of just tyring to get a visa, while they have no intention to follow through on their commitment to invest in the designated province. It would be much better to fix the entire federal system, abolish the PNPs, and allow applicants to set p businesses wherever they feel it would make economic sense.

Island auditor gives legislature committee OK to probe immigration program


CHARLOTTETOWN — The public accounts committee on P.E.I. has been given the green light by the province’s auditor general to conduct its own probe of a controversial immigration program.
The program, which ended Sept. 2, offered expedited Canadian visas for immigrants willing to invest money in Island companies.
Hundreds of millions of dollars have been invested in the province through the so-called nominee program.
Auditor general Colin Younker decided to launch an investigation after a number of discrepancies with the administration of the program came to light.
Several members of the public accounts committee had expressed concern about launching an examination while Younker was conducting his own probe.
But the committee received word this week from Younker that it is free to proceed

Thursday, October 23, 2008


Migrants' bid to unionize contested

B.C. labour board certifies unions at two farms - but employers say labour code does not give them that right


October 23, 2008

VANCOUVER -- The union movement among migrant workers in British Columbia is growing, with the first two farms granted certification by the labour board.

Floralia Plant Growers Ltd. became the second farm to unionize on Oct. 10. Workers on 20 more farms are now interested in joining the United Food and Commercial Workers, according to the union. However, a recent move by employers might put the relationship between migrant workers and the union in jeopardy.

The British Columbia Agriculture Council, which represents the interests of the agriculture industry, questions the right of migrant workers to unionize under the B.C. Labour Relations Code.

The council argues that the code does not constitutionally apply to migrant workers, who come to Canada as part of a federal program that operates under the terms of agreements negotiated by Ottawa with the workers' home countries.

BCAC executive director Steve Tompson said that means the provincial labour board cannot legally grant the workers' requests to join a union. "We feel there is a very legitimate question related to the jurisdiction and applicability in this situation and with respect to this particular program," he said.

Such arguments are far removed from the B.C. farm fields, where workers like Rogelio Larios are employed. Mr. Larios worked on an Abbotsford blueberry farm this season. He's saving money to help finance a handmade jewellery business to support his two daughters in Mexico. The living and working conditions on the blueberry farm are good, but he would like his farm to unionize, he said.

"He wants to have a better future for his daughters," said Jamie Block, translating for Mr. Larios. "In Mexico, where he currently lives, there is no work."

Ms. Block works at a support centre in Abbotsford for migrant workers funded by the union, which has been in close contact with migrant workers in Canada since the 1990s. Stan Raper is UFCW national co-ordinator of the Agricultural Workers Alliance, which operates seven migrant-worker support centres across Canada, including two in B.C.

"A number of workers from throughout British Columbia either call or drop in to our centres, Kelowna or Abbottsford, in order to get translation services [for] income tax, parental benefits, workers compensation cases," he said.

Nearly all of B.C.'s migrant workers are from Mexico, and few speak English. When they come to a support centre to find someone to translate Canadian bureaucracy and file their paperwork for them, they are educated about their right to unionize.

The BCAC filed its application to the B.C. Labour Relations Board on Sept. 29, asking the board to reverse the union certifications already granted. The union rejects the BCAC's argument that the right to unionize does not apply to migrant workers.

Human Resources and Social Development Canada, which administers the Seasonal Agricultural Workers Program, is responsible for bringing the foreign workers to Canada but has played no role in union disputes.

"The unionization of workers has no impact on the SAWP; it is a matter between the employer and the union," media-relations officer Jason Bouzanis said in an e-mail. "If the foreign workers are unionized, they must be offered the agreed union wage or the prevailing wage for the occupation in the region, whichever is higher."

The union and the BCAC disagree on whether the migrant workers would benefit from union representation. Lucy Luna, who runs the union's migrant workers centre in Abbotsford, said many of the farms provide poor housing conditions, and some have dangerous environments where workers are not properly trained or provided with safety equipment.

"But basically the complaint No. 1 is they want to be treated with respect, and that's why they came and they signed cards," she said.

Marcus Janzen owns Calais Farm in Abbotsford and said he doesn't think unionizing would change the basic principles the farm operates on today.

"I haven't thought about it much more than that. It's a free country, the workers can do what they want," he said.

Monday, October 6, 2008

Australia Anounces eVisitor visa for 35 European countries from 27 October 2008

The Minister for Immigration & Citizenship, and the Minister for Tourism, have issued a joint media release announcing that an eVisitor Visa for tourists and business people from all E uropean Union countries and eight other European countries will be available from 27 October 2008.

Tourists and business people will be able to apply on the internet, free of charge.
The Eu countries are: Austria, Belgium, Bulgaria, Cyprus, Czech Republic, Denmark, Estonia, Finland, France, Germany, Greece, Hungary, Ireland, Italy, Latvia, Lithuania, Luxembourg, Malta, Netherlands, Poland, Portugal, Romania, Slovak Republic, Slovenia, Spain, Sweden and the UK.

eVisitor will also be available to citizens from: Andorra, Iceland, Liechtenstein, Monaco, Norway, San Marino, Switzerland and the Vatican City (Holy See).

eVisitor visa holders will able to visit for up to three months at time for tourist or business purposes as many times as they like over a 12-month period.

Posted by Michael Thornton, Thornton Immigration
Dandenong, Australia

Saturday, October 4, 2008


Power of the immigrant vote

Vancouver Sun

Friday, October 03, 2008

As Canada moves closer to election day, our most topical issues are being debated with increasing intensity. The subject of immigration isn't among them. Given its relevance in modern Canadian society, this seems curious.

Perhaps some answers can be found in the Sept. 29 Issues & Ideas article by James Bissett, former executive director of the Canadian Immigration Service. In it, he wrote that "there is only one reason why our political parties push for high immigration intake, and that is they see every new immigrant as a potential vote for their party."

A rather bold statement, but perhaps he's on to something.

The fact is, our mainstream political parties have been buying immigrant votes for decades. The Liberals have been most successful in using immigration to their electoral advantage. A 2005 poll found that 44 per cent of minority community members identified most closely with the Liberals, compared to six per cent identifying with the Conservatives. In the 15 ridings in Canada with the largest immigrant populations, the Liberals claimed victory in every one.

Economically speaking, there has yet to be a study produced showing a positive economic contribution from Canada's immigration policies. There does exist, however, a 2005 study by a Simon Fraser University economics professor pointing out that the 2.5 million immigrants who came to Canada between 1990 and 2002 received $18.3 billion more in government services and benefits in 2002 than they paid in taxes. All major parties advocate an increase in annual immigration numbers. The New Democrats are calling for an annual increase from 237,000 to 333,000. The Conservative party numbers are more modest, while the Liberal party recommendation is 490,000 immigrants annually by 2016.

A 2004 government-sponsored study, Counting and Courting the Immigrant Vote, states that "at no other time in our country's history has the foreign-born elector been so fundamental to whether there will be a majority or minority government in Canada." Perhaps it's time for immigration to take its rightful place among Canada's primary political issues.

Brad Saltzberg

North Vancouver

Saturday, September 27, 2008


Sergio R. Karas will have the distinct privilege of leading colleagues from around the world in a discussion of "Global Business Immigration Update" at the International Bar Association (IBA) Annual Conference to be held in Buenos AIres, Argentina, from October 13 to 18, 2008. Several members of Visalaw Interantional are featured in the panel. Here is the program:

Global business immigration update

Session Chair
Sergio R Karas

This programme will cover the latest developments in immigration
law around the world, with special emphasis on workforce mobility,
new regulations and policies. The speakers will represent a crosssection
of different jurisdictions around the world.


Shalini Agarwal ALMT Legal, Mumbai, India
David Garson Guberman Garson Bush, Toronto, Ontario, Canada
Jelle Kroes Everaert Advocaten Immigration Lawyers, Amsterdam,
the Netherlands
Edward Lehman Lehman Lee & Xu, Beijing, China
Julia Onslow-Cole PricewaterhouseCoopers Legal LLP, London,
England; Council Member, Legal Practice Division
David Ryken Ryken and Associates, Auckland, New Zealand; Vice-
Chair, Immigration and Nationality Law Committee
Gregory Sisskind Sisskind Susser PC, Memphis, Tennessee, USA;
Website Officer, Immigration and Nationality Law Committee
Michael Thornton Thornton Immigration Law, Dandenong,
Victoria, Australia

Thursday, September 25, 2008


A sea change in immigration, met by silence on the hustings - Federal Election -

September 20, 2008
Nicholas Keung
Lesley Ciarula Taylor
Immigration Reporters

When politicians talk about temporary foreign workers, which isn't often, the Conservatives see them as the SWAT team of the global economy, the Liberals as not conducive to nation-building, and the New Democrats as migrants whose wages are exploitative and families fractured.

But no less than the Organization for Economic Co-operation and Development has decided temporary labour migration is the global issue of 2008. More than 2.5 million temporary foreign workers arrived in wealthy countries in 2006, three times the number of immigrants invited to stay.

It "does not appear to be a foundation on which one can construct a solid migration policy," says John Martin, OECD director for employment, labour and social affairs, in the lead editorial of the 30-country policy group's 2008 report on international migration.

Temporary foreign workers have a role to play, he says, but relying on them while letting an immigration system slog through backlogs and poor integration of immigrants just doesn't work in the long run.

When their visas expire and they stay, temporary workers find themselves in jobs with half the pay of a legal worker. The OECD says the vast majority of illegal immigrants in wealthy countries are working.

And the demand is there: small and medium-sized businesses in Canada say almost a fifth of current job demand is for people with basic skills and labourers. Who are they? Hotel, hospital and nursing-home workers, food-service counter staff, construction workers, truck drivers, cleaners, fish-plant workers and taxi drivers.

These people are filling a long-term need, says the OECD, and few wealthy countries have created solid programs to recruit and protect them. Canada, in fact, gives work permits to the spouses of high-skilled temporary workers but not the low-skilled ones.

The number of temporary foreign workers – brought in on one-year visas to do specific jobs – has jumped 58 per cent in the past five years. Last year, Canada imported 115,470 temporary migrants for a total of 201,057, just 25,000 fewer than the number of skilled workers brought in as permanent residents and a 58-per-cent increase in five years.

And as the short-term numbers have been rising dramatically, the number of immigrants who get to come and stay drops. Combined with changes this summer that let Ottawa hand-pick newcomers for specific job skills, Canada is closing its borders in a way not seen since the middle of the 20th century.

"There is something cynical about this new model," says Myer Siemiatycki, a professor in immigration settlement studies at Ryerson University. "On one hand, it rules out most workers from becoming eligible for permanent residency. On the other hand, we induce them to come with the Canada Experience Class as bait. But while they are here, they better be compliant, docile and non-complaining employees."

One of the main reasons Canada has been able to avoid the headache of a huge illegal migrant population has been its focus on bringing in skilled workers as permanent residents, says Jeffrey Reitz, a sociology professor at the University of Toronto and expert on immigrant employment and settlement issues.

"Once you have a substantial underground economy, it is difficult to deal with," Reitz notes. "You see the backlash against immigrants in the U.S. If the public turns against immigrants as a result of misperception that people are bending the rules and are not authorized to be here, Canada's (immigrant) development program will be in jeopardy."

He wants the parties to explain:

What they would do to ensure temporary foreign workers leave Canada (we don't currently keep track).

How they would repair the lax system that allows employers to collaborate with recruiters and immigration consultants to exploit the temporary foreign worker program as a "back door to immigration."

How they would protect these workers who are being abused and exploited because their status is tied to specific employers.

"We bring in people for our permanent needs on a permanent basis and for our temporary labour market needs on a temporary basis," says Karen Shadd, spokesperson for Citizenship and Immigration Canada.

"Hogwash," responds Olivia Chow, NDP immigration critic and candidate in Trinity-Spadina. "This looks at immigrants as economic units. The expansion of the program was a band-aid for decades of neglect and a point system that is so perverse skilled trades can't get in."

Compared with other wealthy countries, Canada has carved out a policy that the numbers of who gets to come here should balance: skilled workers, refugees, families of workers, family reunification, temporary foreign workers. (The United States and France, by contrast, make family migrants 44 per cent of their total.) It means only about 25 per cent of Canada's immigrants are actually hand-picked skilled workers.

Another 21st-century phenomenon has skewed efforts to find the right workers: up to 50 per cent of long-term immigrants, the ones brought in to nation build, leave within five years for home or another country, says the OECD – even in countries like Canada, which give them permanent residence immediately and citizenship quickly.

There is much value to Canada's old open-door immigration policy, says Siemiatycki, the one in whichimmigrants were chosen based on professional skills and education, with the assumption they'd be more adaptable in an economic downturn.

"Tying permanent residency to employment is very short-sighted because the jobs that are available to you today might not be there tomorrow."

Citizenship and Immigration Canada praises its temporary foreign worker program as a quick response to rapid changes in the global market, as does Sergio Karas, chair of the Ontario Bar Association's citizenship and immigration section.

"This is the future of international migration, where we reward the highly mobile individuals who have the right skills to integrate quickly into the labour force and discourage those who will not be able to get a job and contribute to the society."

In an interview on Sept. 13, Prime Minister Stephen Harper said; "Our biggest challenge will be labour shortages, not unemployment."

Immigration has been shunted to the back shelf for years, deputy Liberal Leader Michael Ignatieff told The Star last week. Immigration critic Maurizio Bevilacqua points out that as Tory spending increased 14 per cent, spending on immigration increased 1 per cent.

The ministry has been "a place where you blow your legs off," Ignatieff says of the five ministers in the past six years.

"This is about the Canadian dream and whether Canada keeps faith with that dream."

He evoked the memory of immigration minister Jack Pickersgill paying to fly hundreds of Hungarians caught in the revolution to this country 51 years ago. That, says Ignatieff, is what immigration needs to be again.

Wednesday, September 24, 2008


Visalaw International Canadian lawyer Sergio R. Karas recently attended an event sponsored by the "Give a Day" Foundation, an organization dedicated to raise funds to combat AIDS in Africa through local community involvement. Shown in the photo with me are former Chief Justice and Attorney General of Ontario, Roy McMurtry (far left) and former Canadian Ambassador to the UN, Stephen Lewis ( far right). The organization website is

Sunday, September 14, 2008


This story was published yesterday in the Financial Post section of the National Post, and it is an excellent summary of Canada's current economic situation.


More cmapaign promises....politics as usual:

$800M for immigration backlog Dion's most expensive campaign promise yet

Posted: September 13, 2008, 5:23 PM by Shane Dingman

Liberal honcho Stephane Dion started off small, promising to return $6-million dollars to the Court Challenges program, but in his latest federal spending pledge, he's offering a whopping $800-million to deal with the immigration backlog.

On Friday, Dion unveiled his biggest platform promise to date, a $575-million program to help Canadians make their homes and other buildings more energy-efficient. That at least fits within his Green Shift frame.

But this latest promise, sent out via a Liberal Party e-mail, promises to pour cash on three immigration-related areas:

$400 million to modernize the immigration system, process applications more efficiently and support the admission of significantly more permanent residents to Canada.
$200 million in New Beginnings Canada - an enhanced language training initiative designed to help newcomers master the language necessary to get jobs that match their qualifications; and
an additional $200 million for Bridge to Work - a new initiative that will better prepare newcomers for the workplace through the use of internships, mentorship and work placement opportunities. And we will help get foreign credentials recognized, by providing direct financial support to assist foreign-trained doctors and other professionals in obtaining their Canadian qualifications.
If I didn't know better, I'd say a Tory wrote this. With almost $1.5-billion in new cash out the door in the first week, where can Dion go from here? $10-billion in new programs? $20-billion?

Saturday, September 13, 2008


This article appeared in the Wall Street Journal and is an excellent short summary of the choices in our upcoming election:

Canada's Change Agent

September 13, 2008; Page A12

One candidate believes in low taxes, gun rights and a strong national defense. The other has a dog named Kyoto and promises to levy a new carbon tax on industry. Any guess who is favored to win the Canadian federal election set for October 14?

The answer is Prime Minister Stephen Harper of the Conservative Party, who was elected in January 2006 on a platform to strengthen the military and cut taxes. He has done both. And though he once pledged not to call an early election, he did so on Sunday, explaining that the current parliament has become so "dysfunctional" he can't govern without a new one.

Mr. Harper's main opponent is the Liberal Party's Stéphane Dion, a former environment minister who chaired the U.N. climate change summit in Montreal in 2005. The Conservative minority government would have to add 28 seats to its present 127 to seize a majority, and Mr. Harper is on record saying he doesn't expect that. But he clearly believes that, despite a slowing economy and the loss of the 97th Canadian soldier in Afghanistan last Sunday, he can beat Mr. Dion. The reasons are instructive.

Mr. Harper has restored the country's international prestige by demonstrating political courage on Afghanistan. The Liberals had sent Canadian troops there in 2001 but began agitating for withdrawal when things got difficult. Mr. Harper has refused to cut and run, and he has chastised those NATO partners in Europe who have shrunk from the fight. He has also boosted defense spending so Canadian troops are properly armed.

By contrast, Mr. Dion had sought to withdraw Canada's Afghan contingent "with honor" before 2009. His effort failed, even within his own party, and earlier this year Mr. Harper won an agreement with the Liberals to stick it out in Afghanistan until 2011.

Like Americans, Canadians are also worried about the economy and aren't eager for a tax increase. Mr. Harper has cut the corporate tax rate to 19.5% and has a plan to reduce it to 15% by 2012. (The U.S. rate is still 35%.) He has also reduced the national sales tax by one percentage point to 5%. That boost to consumer purchasing power may have helped Canada avoid recession in the first half of this year. GDP shrank in the first quarter by 0.8%, grew a meager 0.3% in the second and may not do better than 1.1% for the year, according to Finance Minister Jim Flaherty. Mr. Harper argues that now is not the time to raise taxes.

Mr. Dion has a different view, proposing what he calls "the Green Shift." It would impose C$15.4 billion (US$14.4 billion) of new taxes on Canadian industry for their carbon emissions while cutting income taxes. Mr. Harper calls Mr. Dion's plan "the Green Shaft" and likens it to Pierre Trudeau's 1980 "national energy policy" which, the Prime Minister said last week, "was designed to screw the West and really damage the energy sector." Though he added that there is a difference: "This will actually screw everybody across the country." The fellow can be blunt.

The larger question is what Mr. Harper would do with a real majority. In 2005 his Liberal opponents portrayed him as a far-right extremist. Yet like his countrymen, he has shown little appetite for extreme positions, and if anything he has proven to be a steady leader who until recently has worked effectively across party lines. Even the separatist movement in Quebec seems to have lost its mojo during his tenure. That may be why Canadians are likely to ask him to stay on.

Thursday, September 4, 2008


The problem of Chinese fugitives accused of major financial crimes has been a thorny one for Canada: after making their way to Canada, often fraudulently with false identities, Chinese fugitives request refugee status, a determination that takes several ye rs, and even when their cases are found not to be meritorious, they manage to stall deportation China for long periods of time on the grounds that China implements the death penalty against financial criminals. This has brought to Canada dozens of the most unsavoury characters from China....but change seems to be in the air.

Chinese fugitive's deportation hailed as landmark move

Co-operation on case of man accused in fraud scheme seen as sign of improving Sino-Canadian relations


From Thursday's Globe and Mail

September 4, 2008 at 5:14 AM EDT

BEIJING — After years of deadlock, Canada and China have taken a small step toward resolving one of their thorniest disputes: the fate of Chinese fugitives who take shelter in Canada.

Deng Xinzhi, whom the Chinese accuse of being a swindler, has been quietly deported from Toronto back to China to face criminal charges for his alleged role in a $3-million fraud scheme. Beijing has hailed it as a landmark move, potentially clearing the way for more than 500 criminal fugitives to be sent back to China from Canada and other countries. It is also seen as a sign of improved Canada-China relations.

Some of the Chinese fugitives have sought refugee status in Canada, triggering lengthy legal battles that frustrated China and provoked a storm of criticism in the Chinese media, where Canada is often described as a haven for Chinese criminals and corrupt officials.

Canada's reputation for giving shelter to alleged Chinese criminals has been one of the biggest stains on Canada's public image in China in recent years. Many Chinese opinion leaders have accused Ottawa of thwarting justice by allowing criminals to stay in Canada for many years without deporting them.

The federal Conservative government denies the charge. "Mr. Deng's removal from Canada further underscores this government's commitment that our country will not be a safe haven for fugitives," Public Safety Minister Stockwell Day said in a statement. "On this, our tolerance level is zero."

Mr. Deng fled to Canada in 2003 and lived in the Toronto area. Chinese authorities say that he and a gang of other suspects had swindled the equivalent of about $3-million from Chinese citizens in 2002 by fraudulently posing as employees of China Life, a major insurance company.

Canadian border security officers escorted Mr. Deng back to China on Aug. 22, during the height of the Beijing Olympics, when few people noticed the move.

But other fugitives - including Lai Changxing, the accused kingpin of a $10-billion smuggling ring who is often described as China's most wanted man - are still living in Canada in defiance of Chinese demands. Mr. Lai fled to Canada in 1999 and has been fighting a marathon legal battle for the right to stay. A federal judge has ruled that Mr. Lai could be at risk of torture if he is deported to China, where such methods are often used.

In another high-profile case, China wants to prosecute three Chinese fugitives who fled to Canada in 2004 after allegedly embezzling more than $100-million from a bank in northeastern China. The three men were arrested in Vancouver last year, but they are still embroiled in a legal battle against their deportation.

"There has been a perception among Chinese people that Canada has been too dismissive of Chinese concerns over Chinese criminals who resettle in Canada with their illegally gotten gains," said Charles Burton, a political scientist at Brock University who specializes in Canada-China relations. "[The deportation] will go a long way to improving Canada's image in China."

Some Chinese media have suggested that the deportation of Mr. Deng last month could "accelerate" the deportation of Mr. Lai and other alleged Chinese criminals. "I'm convinced it's the trend for the future," one legal expert told the China Daily this week.

Canada's decision to deport Mr. Deng was praised by China's Public Security Ministry, which said it "appreciated" the move and hoped for further "co-operation" with Canada in the future.

But other Chinese media commentators say the Deng case is unlikely to become a precedent. They note that Mr. Deng had much less money than Mr. Lai and was unable to mount as extensive a legal battle. And there is still no extradition treaty between Canada and China. To think that the Deng case will pave the way for Mr. Lai's deportation is "wishful thinking," said one Chinese blogger who specializes in Canada-China issues.

In some deportation cases, Canada has obtained a promise from Beijing that it will not execute a suspect who is deported from Canada to China. It is unclear whether any such promise was obtained in the case of Mr. Deng.

On forums on the Internet, many Chinese people commented that Canada is still a "haven for criminals," despite the Deng deportation. Only if Mr. Lai is deported to China will Canada lose that reputation, they said.

"To deport a small fish and keep the big fish - isn't that just a show?" asked one person on a popular website,


Immigrants bypassing Toronto to follow money West, study finds


From Thursday's Globe and Mail

September 4, 2008 at 4:50 AM EDT

A new study shows immigrants earn more money in Calgary, Regina and Saskatoon than they do in Toronto, a significant trend that could help explain why the city's share of immigrants is steadily declining.

While Toronto remains overwhelmingly the dominant hub for newcomers, its proportion of Canada's total annual immigrant intake dropped to nearly one-third in 2007 from half in 2001. In contrast, the numbers settling in western cities such as Calgary, Edmonton, Regina and Saskatoon have increased every year in the past five years.

"This represents a significant shift in immigration patterns," said Jack Jedwab, executive director of the Association for Canadian Studies, which released the study on immigrant family income this week.

"We think of Alberta and Saskatchewan as a place for internal migration, but now the West is drawing immigrants as well."

Immigrants often settle where family members live, but are also drawn by economic opportunities. The oil and natural-gas booms in Alberta and Saskatchewan have led to huge labour demands and a rise in wages as business owners struggle to fill jobs.

In 2005, the average annual income for an immigrant family in Calgary was $102,118, which is $33,000 more than in Montreal, $22,000 more than in Vancouver and $12,000 more than in Toronto, according to the census data analyzed in Mr. Jedwab's paper.

The average income was $92,932 in Regina and $91,356 in Saskatoon. Between 2001 and 2005, Saskatchewan moved from the bottom three provinces to the top three in terms of average income for immigrant families, behind Alberta and Ontario.

The wage differential between non-immigrant families in Toronto - who earned on average $139,926 a year - and those born elsewhere was 55 per cent. In contrast, the gap narrows to 33 per cent in Calgary, where non-immigrant families earn on average $136,380, and 19 per cent in Edmonton.

In Regina and Saskatoon, non-immigrant families actually earn 1 per cent less on average than their immigrant counterparts. The income gap reflects social mobility. "People are asking the question, 'How am I doing as an individual, and how am I doing compared to others?' " Mr. Jedwab said.

For his study on family incomes, all foreign-born Canadians were considered immigrants. But more recent cohorts of arrivals show a similar trend. Their wages are substantially lower than for the overall immigrant population; however, they still fare much better economically in the West, as well as in some smaller Ontario cities such as Oshawa and Ottawa, than in Toronto, Vancouver and Montreal.

For example, the average annual income for an immigrant family who settled in Calgary between 2001 and 2005 was $69,148. The only city where they earned more money was Sudbury, while in Toronto, the average annual family income was $57,239; in Vancouver $53,028; and in Montreal $45,435.

Ottawa's goal has always been to disperse immigrants more evenly across the country and avoid concentrating too many new arrivals in Montreal, Toronto and Vancouver. In 2007, cities outside the "MTV" received nearly one in three of Canada's total 236,000 newcomers.

This trend is healthy, said Myer Siemiatycki, a Ryerson University professor of immigration and settlement studies, although he noted that Toronto, Montreal and Vancouver still receive the lion's share of immigrants and Montreal has actually increased its share.

Well-educated newcomers may be faring better in smaller cities such as Regina because there is less competition for high-paying jobs. "Saskatchewan traditionally had problems attracting high-end talent," Prof. Siemiatycki noted.

As well, the economy is not as robust and dynamic in Toronto and Montreal as it has been in Alberta and, more recently, in Saskatchewan.

Ratna Omidvar, executive director of the Maytree Foundation, a charity that aims to reduce poverty and inequality in Canada, said Toronto is still a huge draw, as are surrounding cities such as Brampton and Mississauga.

"For sure, there are fewer immigrants coming to Toronto, but they are going to the outlying suburbs comprising the city region," she said.


New Roots

Where new immigrants are finding work and putting down roots in Canadian cities.

The number of foreign permanent residents is rising in these communities:

Charlottetown: +50.2%

Halifax: +44.8%

Moncton: +74%

Edmonton: +52%

Calgary: +32%

Montreal: +36%

...while declining in these cities

Toronto: -20.8%

Vancouver: -1%


Monday, September 1, 2008


Heritage department takes aim at religious radicals

Multiculturalism plan under scrutiny

From Monday's Globe and Mail

September 1, 2008 at 3:41 AM EDT

The federal culture department wants to fight religious radicalization in Canada.

Canadian Heritage officials, who are responsible for the promotion of citizenry, say the country has moved beyond the "mosaic" model of the 1970s and entered an era of "integrative multiculturalism" that requires, in part, a battle against youth extremism.

In a presentation to a federal national security advisory board, Andrew Griffith, Canadian Heritage's director-general of multiculturalism and human rights, raised a series of issues including the question: "What is the appropriate role for Canadian Heritage and its Multicultural Program in countering radicalization?"

"Are traditional government objectives [civic participation, anti-racism/cross-cultural understanding, inclusive institutions] enough to address radicalization, or are radicalization-specific initiatives required?"

His PowerPoint presentation offers no concrete answers, but hints that shifting demographics mean the government must "adjust multiculturalism programming" in order to "advance core Canadian values."

The "Canadian Multiculturalism Act is flexible," the presentation notes.

The slides point out that Islam is, by far, the fastest growing religion in Canada and that the Middle East and Asia are, by far, the biggest source countries for immigrants.

The presentation was given in March to the cross-cultural roundtable on security, an advisory group drawn from government-appointed Canadians who come from a wide array of ethnic and religious backgrounds.

"Members were briefed on program and policy changes related to multiculturalism that better supports ethno-cultural minority participation and inclusion," reads a short synopsis of the meeting that is posted on the roundtable's website.

According to the Heritage presentation, 1970s- and 1980s-era initiatives geared toward "celebrating differences" and "accommodation" should now promote "rights and responsibilities" and the "Canadian identity." And compared with earlier problems such as "prejudice" and "systemic discrimination," a "clash of cultures" is highlighted as a major issue faced by immigrants today.

The presentation notes that Australia, the United Kingdom, France and the Netherlands have all been taking steps to integrate immigrants and combat religious extremism.

Jeffrey Reitz, a University of Toronto professor and expert on immigration, said Canadian Heritage's multiculturalism program has had limited reach. Successive governments have cut funding for the general multicultural program to less than a dollar a year from each Canadian, he said.

The professor said official multiculturalism has become a value so ingrained in the Canadian psyche that changes to programs should be debated by society as a whole. He argued that radicalism, to the extent it might exist, remains a problem best dealt with by police.

CSIS and the RCMP officials have become increasingly outspoken about how they see radical youth as a major problem, including several ongoing cases where they've never managed to arrest anyone.

Canadian Heritage's multiculturalism branch is distinct from its arts-funding branch that has lately been a source of controversy for the Conservative government. The Tories are denying allegations that ideology is playing a part in their plans to cut $45-million in artist grants.

It is difficult to determine what amount of money - if any - might be going toward the multiculturalism branch's deradicalization initiatives.

Spokespersons for Canadian Heritage were last week unable to formulate replies to questions The Globe and Mail asked about the department's stated objective of "addressing issues of cultural social exclusion [parallel communities] and radicalization" - a test now applied to applications by community groups for grants to promote multiculturalism.

Saturday, August 30, 2008


The Impact From An Immigration Law Perspective On Non-Union Nationals Of The Implementation In Italy Of Directive 2004/38/Ec Of April 29, 2004 (On The Right Of Citizens Of The Union And Their Family Members To Move And Reside Freely Within The Territory Of The Member States)

1. Introduction

Italy has implemented Directive 2004/38/EC of April 29, 2004, on the right of citizens of the Union and their family members to move and reside freely within the territory of the Member States, by enacting Legislative Decree No. 30 of February 6, 2007 (hereinafter, the “Decree”).

The provisions of the Decree are important from an immigration law perspective for two reasons:

- firstly, because they apply to family members of a Union citizen (i.e. any person having the nationality of a Member State of the European Union), irrespective of the nationality of such family members: this means that non-Union citizens may enjoy a right of entry and a right of residence in Italy substantially different from, and much broader in scope than, the one ordinarily applicable to non-Union citizens;
- secondly, because the enactment of the Decree has represented the occasion to repeal certain provisions of Italian law concerning family members – not having Italian or Union citizenship - of an Italian citizen, wishing to join the Italian citizen in Italy: the Decree, in fact, applies also to the (foreign) family members of an Italian citizen, thus harmonising the provisions valid for all other Union citizens.

For purposes of this paper, in the following the notion of “family member/s” always assumes: (a) that the family member does not have Italian or any other Union Member States nationality; and (b) that the family member has a family tie to either a Union citizen or to an Italian citizen.

2. The status of family members

Pursuant to Article 2 of the Decree, family members are:

- the spouse;
- the direct descendants of the Italian or Union citizen who are under the age of 21, or are dependants on this latter;
- the direct descendants of the spouse who are under the age of 21, or are dependants on this latter;
- the dependent direct relatives in the ascending line of the Italian or Union citizen, and those of the spouse.

3. Right of entry
Family members are granted leave to enter the Italian territory provided they have a valid passport and, where required, a valid entry visa. In such latter respect it must be noted that the citizens of Andorra, Argentina, Australia, Brazil, Brunei, Canada, Chile, South Corea, Costa Rica, Croatia, El Salvador, Japan, Guatemala, Honduras, Hong Kong, Israel, Malaysia, Macau, Mexico, Monaco, Nicaragua, New Zealand, Panama, Paraguay, Syngapore, United States, Uruguay and Venezuela are exempted from an entry visa if the intended duration of their stay in Italy does not exceed 90 days (for purposes other than that of carrying out subordinated or self-employment work activities, whereas these latter cases always require an ad hoc visa).
Citizens of Switzerland, San Marino Republic and Vatican State are always exempted from any visas.

4. Right of residence for up to 3 months

Family members accompanying or joining a Union citizen or an Italian citizen have the right of residence in Italy for a period of up to three months, without any further formalities other than those required at the time of entry.

5. Right of residence for more than 3 months

Family members have the right of residence in Italy when they join an Italian citizen or when they accompany or join a Union citizen who:

- is an employee or self-employed person in Italy; or
- is enrolled at an accredited private or public establishment for the principal purpose of following a course of study or of vocational training; and
- has sufficient resources for himself and the family members not to become a burden on the social assistance system and has sickness insurance cover or other kind of coverage encompassing all risks in Italy.

In such case, family members shall register themselves with the General Registry Office (Ufficio dell’Anagrafe), by providing evidence of their status of family members.

6. Residence card of a family member of a Union citizen

Following 3 months as of the entry in the Italian territory, family members shall apply for the so-called “Residence card of a family member of a Union citizen” with the local Police Office (Questura), by exhibiting a valid passport, a valid entry visa – where required – evidence of the status of family member, evidence of the registration with the General Registry Office.

The residence card of a family member of a Union citizen has a validity of 5 years and exempts the holder to apply for any further visas in case of exit and re-entry to Italy.

Most important, the residence card entitles the holder to take up employment or self-employment in Italy (excluding only those activities that Italian law reserves to Italian nationals).

The validity of the residence card is not affected by temporary absences of the card holder not exceeding six months per year, or by absences of a longer duration for compulsory military service or by absences of a maximum of twelve consecutive months for important reasons such as pregnancy and childbirth, serious illness, study or vocational training, or a posting for work purposes in another State.

7. Permanent residence

Family members who have resided legally in Italy for a continuous period of five years (together with the Italian or Union citizen) accrue the right of permanent residence. Once acquired, the right of permanent residence is lost only through absence for a period exceeding two consecutive years.

Permanent residence is evidenced through a “Permanent residence card of a family member of a Union citizen”, which shall be applied for with the local Police Office (Questura) prior to the expiration of the Residence card of a family member of a Union citizen.

The permanent residence card, of course, entitles the card holder to take up employment or self-employment in Italy (excluding only those activities that Italian law reserves to Italian nationals).

Corrado Scivoletto
Corrado is a lawyer with Studio Legale Associato Simonetti Persico Scivoletto - an Italian law firm with offices in Rome

Friday, August 29, 2008


“The scandal of secret swiss bank account” - so was the title of an article in the very honourable Time Magazine in March 1970. Since then the myth of the Swiss banking secrecy has never lost its attraction and topicality. After fighting Switzerland's banking secrecy laws for decades Europe is about to receive support from the United States. They are trying to ratchet up pressure against the system.

Around the Swiss banking secrecy entwine a lot of myths especially abroad but as well in Switzerland itself. Legends are often built of facts, half-truths and fictions which partly deviate from the truth. This article will give a general view over the content and scale of banking secrecy and the actual events.

Banking secrecy refers in Switzerland as well as in most of the other countries basically to the professional discretion of the banks, their representatives and their employees in the business affairs of their clients. It is regulated on the one hand under civil law, in particular from the contractual obligation of the banker to uphold the confidentiality of his clients' personal situation. Furthermore the client's privacy is also protected under the general provisions pertaining to protection of the individual as well as under data protection law. A banker who reveals the secrets of his client may face a jail sentence or be fined. But a series of legally defined limitations to banking secrecy exist. Exceptions to banking secrecy are provided for in civil law, debt collection and bankruptcy law, criminal law, administrative law and in cases of mutual assistance in legal matters.

But the last-mentioned case is seen by most of the other countries as performing only lip-service and as a thorn in their side. The crux of the matter is the principle of equivalence. That means that the duty to give evidence and information to foreign authorities must not go beyond the corresponding duty to the Swiss authorities. Since the domestic duty of evidence and information is highly constricted the principle of equivalence matters a lot. Art. 3 paragraph 3 IRSG (Swiss law with regard to the judicial assistance) regulates that no judicial assistance is to be given in case of an evasion of taxes. But the Swiss authorities have the right to obtain bank information in case of a tax fraud (tax evasion combined with falsification of documents). This relies on the fact that contrary to other laws (for example, German law) Swiss law does not prosecute a simple tax evasion. The taxpayer is given a leap of faith when they hand in tax documents. If tax evasion is revealed he just has to pay the taxes he “forgot” and will be fined.

This gives foreign taxpayer whose countries have a stricter law the opportunity to “park” amounts of money into trusts, offshore companies and bank accounts, protected by the bank secrecy. If this can be assessed as criminal support of tax evasion or even of tax fraud is judged controversial the last decades. New is the significance of the reproaches brought in action by the USA against the Swiss bank UBS. Nearly everybody heard the names Bradley Birkenfeld and Igor Olenicoff the last months. This hits the UBS in its current weak position and unhinges the bank secrecy system.

For years, the US Senate has been conducting its own detailed inquiries into the issue of tax evasion. Senators have summoned key representatives of the industry, including tax advisors, accountants, lawyers and bankers, to the Capitol in Washington for lengthy hearings. These hearings have produced reports, some of them hundreds of pages long, on the "tax shelter industry" and "its tools, methods of obfuscation and those pulling the strings." UBS was mentioned early in the Senate documents as an offender. With relish, the senators cited a letter written by an insider to UBS management. According to the letter, the bank offers "US taxpayers illegal tax evasion models," part of a system that costs American tax authorities "several hundred million dollars a year."

Three US authorities are now conducting investigations against the Swiss portfolio managers: tax investigators from the US Justice Department, the Securities and Exchange Commission (SEC), headed by Christopher Cox, and New York Attorney General Michael Garcia. All are now hunting down the Swiss.

Political conflict is also on the horizon. An aggressive bill to combat tax evasion, the "Stop Tax Haven Abuse Act," was introduced in the US Congress last year. The legislation provides for tough measures against 34 tax havens, including Liechtenstein, Luxembourg and Switzerland. The bill has stood little chance of becoming law until now. But that could quickly change after the presidential election in November. One of the bill's three sponsors is Senator Barack Obama, who is currently favored to win the White House.

But: generally Swiss bank secrecy is an expression of an historically developed state system which treats the citizen as sovereign and provides a direct insight into the financial circumstances of the tax payers only by probable cause. The state's interests are preserved by a withholding tax which punishes tax evasion without revealing the names of those involved. But the advantages are badly communicated and it is for sure that abuse has to be prevented.

Caterina Naegeli
Grossmuensterplatz 9,
CH-8001 Zurich, Switzerland

Sunday, August 24, 2008


The European Commission has adopted its fourth report on visa waiver non-reciprocity with third countries. The European Commission has adopted its fourth report on certain third countries' maintenance of visa requirements in breach of the principle of reciprocity. The report shows that further progress towards full visa reciprocity has
been achieved.

Vice-President Jacques Barrot, Commissioner responsible for Justice, Freedom and Security underlined the usefulness of the reciprocity mechanism: "This Report clearlydemonstrates that the dialogue with third countries under the new visa-reciprocity mechanism has once again proven effective, resulting in visa free travel for all our citizens to another 3 countries. The Report however also proposes retaliatory measures where insufficient progress has been achieved. It is unacceptable that nationals from some third countries can benefit from visa free travel to the EU whilst some of our fellow EU citizens can't travel visa free to those countries. This is at the heart of our visa reciprocity mechanism and I am committed to ensuring that that principle is fully respected ".

The main conclusions of the report show that full visa reciprocity has now been accomplished with Israel, Malaysia and Paraguay. The Commission has achieved significant progress in the dialogue with Canada, which lifted the visa requirement for six Member States over the last ten months. In the dialogue with Australia the Commission has achieved access for nationals of all Member States to the "autogrant facility" and ensured equal treatment for the nationals of all Member States from October 2008 onwards once the Australian eVisitors system is in place. The implementation of the Australian eVisitors system will be carefully monitored. With regard to Brazil, negotiations for a short-stay visa waiver agreement between the European Community and Brazil have started.

No progress has been achieved with Japan, Panama, Singapore and the United States of America (USA). The Commission notes that Japan is currently examining an extension of the short-stay visa waiver to Romanian nationals but reiterates its request for full visa waiver reciprocity for the citizens of all EU Member States. The Commission will monitor Panama's intention to waive the visa requirement for citizens of Bulgaria and Romania.

With regard to Singapore, the Commission suggests that retaliatory measures should be considered if within a reasonable time full reciprocity is not achieved.

No tangible progress has been made regarding the USA despite all efforts of the Commission and individual Member States. Citizens of twelve EU Member States continue to require a visa when travelling to the USA. The USA committed at the June 2008 EU-USA Summit to include additional EU Member States into its Visa Waiver Program (VWP) this year. Therefore, the Commission will propose retaliatory measures –
e.g. temporary restoration of the visa requirement for USA nationals holding diplomatic and service/official passports – as from 1 January 2009 if no progress is achieved. The Commission will submit its next report before 30 June 2009.

JLS web-site:

Corporate and Immigration Lawyer.
Valencia- SPAIN


1. Right to Freely Travel and Maintain the same rights within the European Union.

2. Right to Vote and be Eligible to Run for Office in the European Parliament.

3. Right to Vote and be Eligible to Run for Office in Municipal Elections.

4. Right to have an Efficient Governmental Services.

5. Right to Review Documents.

6. Access to European Ombudsman.

7. Right to Petition.

8. Right to Diplomatic and Consular Protection

Corporate and Immigration Lawyer.
Valencia- SPAIN


If you are a Foreigner and seek to have Spain accept Tourist or Personal Relatives for residence in Spain, an Invitation Letter is necessary. Spain, a member of the European Union and signatory to the Schengen Agreement of June 1985, has an obligation to uphold the Schengen Border Code by controlling foreigners who wish to enter into other countries who are party to this Agreement.

Individually carried out, our Country in accord with the Schengen Agreement, implements the Rules Governing Invitations effecting both Spanish Nationals as well as legal foreign residents of Spain.

Who can submit a letter in favour of a foreigner/ traveller, assuming that there is an agreement to pay housing for the foreigner for the duration of the stay?

- A Spanish citizen
- A Citizen of a Country who is a member of the European Union or beneficiary of the
Community Regime

- A Spanish Legal Foreign resident

In the letter of invitation, the Sponsor must affirm their understanding of the information contained in Art. 318 of the Penal Code listing illegal trafficking of people as a crime punishable by prison for infractions in article 54.1 b), 55.2 c), and 57.1 of the LO 4/2000, there is a fine with a minimum of 6001 and maximum of 60,000 Euros or banishment from Spanish territory for a period of 3 to 10 years and finally all Personal Information such as Passport Number, Nationality and Residence will be flagged to alert both the Police and Civil Guard.

Corporate and Immigration Lawyer.
Valencia- SPAIN

Saturday, August 23, 2008


The US Department of Homeland Security (DHS) has announced the new online travel system for air and sea travelers on the Visa Waiver Program[1] (VWP). This new system, called the Electronic System for Travel Authorization (ESTA), became accessible for voluntary completion on August 1, 2008. Under the new system, travelers for business or pleasure who plan on entering the US on the VWP will be required to log on to the ESTA website and obtain a clearance for travel to the US. Although the program is voluntary at this time, ESTA will become mandatory for VWP travelers on January 12, 2009.

ESTA Travel Authorization

Once ESTA becomes mandatory, visitors to the US who are entering visa-free under the VWP will be required to visit the ESTA website and complete an on-line application. Individuals entering the US with a visa will not be required to complete an ESTA application. DHS recommends that the on-line application be completed no later than 72 hours prior to travel. The application contains questions similar to the I-94W, such as name, date of birth, duration of trip and address in the US, and whether the applicant has been convicted of a crime. Once a traveler completes the application, they will usually receive a response within seconds. The response will be one of the following:

Authorization Approved – travel authorized
Travel Not Authorized – applicant must apply for a visa at an Embassy or Consulate prior to travel to the US
Authorization Pending – traveler will need to check the ESTA website within 72 hours to receive a final response

ESTA approvals will be valid multiple entries to the US for two years or until the applicant’s passport expires. The applicant should log on to the website to change destination addresses and itineraries for future trips.

Failure to complete ESTA and admission to the US

Once ESTA becomes mandatory, failure to complete the on-line application and obtain travel authorization may result in the traveler being denied boarding, experiencing significant delays on entry to the US or being refused admission at the port of entry. Similarly, travelers who complete an ESTA application and receive an Authorization Approved message are not guaranteed entry to the US – the approval only authorizes the traveler to board the aircraft.

VWP travelers may complete their ESTA application and find more information on ESTA at

[1] Citizens or nationals of the following countries are currently eligible to travel to the United States under the VWP: Andorra, Austria, Australia, Belgium, Brunei, Denmark, Finland, France, Germany, Iceland, Ireland, Italy, Japan, Liechtenstein, Luxembourg, Monaco, The Netherlands, New Zealand, Norway, Portugal, San Marino, Singapore, Slovenia, Spain, Sweden, Switzerland, United Kingdom

Contributed by Christi Hufford, Siskind Susser PC.

Thursday, August 21, 2008


Despite the slowdown in the US economy, the major temporary and permanent visa categories for high skilled workers remains serious oversubscribed and backlogged.

The H-1B Crisis

The H-1B is the major visa temporary visa category available in the US for professional workers. It is available to those with bachelors degrees filling positions with employer that require degrees. In 1990, Congress for the first time set a limit of 65,000 on the number of H-1B visa and within a few years it was becoming clear that the annual quota was inadequate.

Begin in the late 1990s, Congress temporarily raised the annual H-1B quota. Those temporary increases expired in 2003 and the annual cap returned to 65,000 from 190,000. Congress did establish several important exemption categories beginning in the late 1990s including employees of colleges and universities, certain physicians working in underserved areas and employees of non-profit research institutions.

For the last several years, Congress has provided for a bonus quota of 20,000 extra H-1Bs for graduates of US masters and higher degree programs.

For the past two years, demand for H-1Bs has been so strong that the entire annual allotment has been drawn immediately after the numbers became available. Visas can be claimed up to 180 days before the beginning of a the government fiscal year that annually starts on October 1st. That means applications must be filed on April 1st to have a reasonable chance of being selected. In 2007, US Citizenship and Immigration Services received more than twice as many applications on the first day available as slots available under the basic 65,000 cap. In 2008, a similar number of applications were received on the first day and the bonus pool of 20,000 visas for advanced degree professionals was used up within a week. In short, the H-1B process has become a lottery.

H-2B problems

A temporary visa category available for short term and seasonal workers, the H-2B, has similar problems as the H-1B. The H-2B cap is set at 66,000 and can be used for any type of worker whether professional, skilled or unskilled. Up until September 30, 2007, returning seasonal workers were not counted against the annual 66,000 limit if they had previously been counted in the annual quota. Congress has not extended that provision which has led to the H-2B quota being used up rapidly. While demand is not quite as strong as in the H-1B category, the H-2B quota is now only available for brief periods of time during the fiscal year.

Green card backlogs

The situation for employment-based permanent residency visas (“green cards”) is no better. Waits in the popular EB-3 green card category for skilled and professional workers are now estimated at five to seven years. The wait in the EB-2 category for workers with masters degrees or higher is not backlogged for most workers. However, nationals of China and India are facing additional waits of two to four years. Why? Because US immigration law limits admissions in the various green card categories to no more than 7% from any one country. Given the large populations of Indian and Chinese highly educated professionals seeking positions in the US, this backlog is hardly a surprise. The waits will likely only grow as the additional H-1B workers who benefited from larger quotas earlier in the decade seek to convert to permanent residency.


Followers of US politics know that immigration has been a very heated issue for the past few years. Attempts to pass major immigration reform legislation have failed and members of Congress have been extremely reticent to push forward any immigration legislation, whether controversial or not. Furthermore, some members of Congress who are pro-immigration have made the strategic choice to block small, pro-immigration bills – such as bills lifting H-1B and green card caps or restoring the H-2B returning worker provision – in order to force reconsider of a massive comprehensive immigration reform package. So while there is general support in Congress for addressing the lack of non-immigrant and immigrant visas for needed workers, political considerations are getting in the way.

The odds are increasing that nothing will happen until after the election. Democrat Barack Obama and Republican John McCain are each considered to be pro-immigration and are likely to support measures to increase visa availability. The problem will likely be in Congress where a small minority can block legislation. Democrats are generally viewed as the more pro-immigration party and there is optimism that if they increase their numbers substantially (as is widely expected), this will bode well for addressing immigration in the next session of Congress.

In the mean time, there are alternative strategies that companies and workers can consider.

First, there are other visa categories that frequently are available, some of which have no numerical limits. The L-1 visa is available for employers that first employ key workers abroad with the company for a year prior to seeking entry. The J-1 visa for trainees and interns is available for up to 18 months for junior level workers seeking to gain experience in their fields. Foreign-owned corporations with qualifying commercial treaties with the US can sometimes bring in key employees.

Second, President Bush recently stepped in as well to with a new rule that allows students in the US in certain science, technology, engineering and mathematics (STEM) fields to work for up to 27 months after they complete their degrees. The previous rule limited such work to 12 months. Aside from having to work in a qualifying field, the employer must participate in the controversial new E-Verify electronic employment verification system which documents that workers are authorized to work in the United States. E-Verify is largely targeted at employers hiring illegally present lesser skilled workers.

Finally, for advance degree workers who qualify in the EB-2 green card category and who are not from countries with per country limits (currently just India and China), bypassing the non-immigrant visa and going directly for the green card may be a possibility. An employer would need to be prepared to wait a number of months – likely one to two years – before the worker could enter with permanent residency.


Ultimately, the US Congress will need to step in if the US is to remain an attractive location for top global talent. More visas will need to be made available both at the temporary level and at the permanent level. Unfortunately, the odds of this happening in 2008 are slim and it may be well in to 2009 before there is any progress to report.

Gregory SiskindMemphis800-343-4890 /