On December 30, 2011, Citizenship and Immigration Canada (“CIC”) published Operational Bulletin 368 (“OB 368″).  According to OB 368, all Canadian Experience Class (“CEC“) applications must now be submitted to the Centralized Intake Office (“CIO“) in Sydney, Nova Scotia.  This change became effective on January 1, 2012.

Upon receipt, the CIO will assess each CEC application for completeness.  An application must include all of the forms and documents listed in the Generic Document Checklist for CEC applicants to be considered complete by the CIO.

If the application is incomplete, the CIO will return the entire application package (including fee payment) to the applicant. For complete applications, the CIO will enter the application information into the Global Case Management System and recover the processing fee.  CIO will then send complete applications to an appropriate office for processing.  Offices will process applications according to existing procedures and processing priorities.

Until January 31, 2012, all visa offices will continue to accept any CEC application submitted directly to their office.  Missions should forward any CEC application received directly to the CIO.  After January 31, 2012, applications will be returned to the applicant advising them that they must submit their application to the CIO.

On December 30, 2011, Citizenship and Immigration Canada (“CIC”) issued Operational Bulletin 373 (“OB 373”).  OB 373 provides additional information relating to the Excessive Demand Cost Threshold (the “Demand Threshold”) for 2012, which became effective on December 1, 2011.

The Demand Threshold is used to determine whether a foreign national should be barred from Canada based on health grounds. Although it may also be applied in the case of temporary residents (i.e. nonimmigrants), the Demand Threshold is most often applied when considering the admissibility of foreign nationals who are seeking permanent residence in Canada.

Applicable law

According to Clause 38(1)(c) of the Immigration and Refugee Protection Act, a foreign national is inadmissible on health grounds if their health condition might reasonably be expected to cause excessive demand on health or social services. The term “excessive demand” is defined in the Subsection 1(1) of the Immigration and Refugee Protection Regulations (“IRPR”) as:

1. A demand on health services or social services for which the anticipated costs would likely exceed average Canadian per capita health services and social services costs over a period of five consecutive years immediately following the most recent medical examination required by the IRPR, unless there is evidence that significant costs are likely to be incurred beyond that period, in which case the period is no more than ten consecutive years, or
2. A demand on health services or social services that would add to existing waiting lists and would increase the rate of mortality and morbidity in Canada as a result of an inability to provide timely services to Canadian citizens or permanent residents

However, according to R38(2), the excessive demand ground of inadmissibility does not apply in the case of a foreign national who:

1. Is a member of the Family Class (a spouse, common-law partner or child of a sponsor who is seeking permanent residence)
2. Has applied for a permanent residence as a Convention refugee or a person in similar circumstances, or
3. Is a protected person.

The above individuals may not be barred from Canada based on excessive demand. However, the Demand Threshold is relevant to all other foreign nationals seeking both temporary resident and permanent resident status.

Initially, the Canadian Institute for Health Information (“CIHI”) aggregate that represented average Canadian per capita health expenditure was used as the Demand Threshold. However, CIC’s Health Branch felt that CIHI figure did not completely cover expenditures for certain social services. In January 2003, a supplementary amount was identified to account for the missing per capita expenditures and this amount was combined with the CIHI figure to calculate the Demand Threshold.

Application

The 2012 Demand Threshold has been set at $6,141.00CAD per year, and is effective as of December 1, 2011. As the definition of excessive demand describes costs incurred over a period of five consecutive years, the annual figure is normally multiplied by five and then compared to the expected medical costs of the foreign national during that period. This results in a legislated 2012 Demand Threshold of $30,705.00CAD ($6,141.00CAD x 5) over five years.

On January 6, 2012, the Department of Homeland Security (“DHS”) announced that it was proposing a regulatory change that would allow spouses and children of U.S. citizens who are in the United States but need an immigrant waiver of unlawful presence bar to apply for the waiver within the United States. On January 9, 2012, DHS published a Notice of Intent relating to these proposed changes, in the Federal Register.

Under the Immigration and Nationality Act (“INA”), certain grounds of inadmissibility can bar aliens from being admitted to the United States or from obtaining an immigrant visa. However, the Secretary of DHS, through United States Citizenship and Immigration Services (“USCIS”), may waive some of those grounds.

Currently, aliens who are immediate relatives of U.S. citizens applying for immigrant visas at consular posts must apply for immigrant waivers while outside the United States, after a finding of inadmissibility is made by a consular officer in connection with their immigrant visa applications. As a result, U.S. citizen petitioners are often separated from their immediate relatives for extended periods.

The proposed regulatory change would allow spouses and dependent children of U.S. citizens to apply for a provisional immigrant waiver of the unlawful presence bars while they are still in the United States. If the provisional waiver is granted, the foreign national will then leave the United States and apply for an immigrant visa at a consular post abroad. If the alien is otherwise eligible for the immigrant visa, the consular officer may then approve the issuance of the visa so that the alien may enter the United States as a permanent resident.

There are two unlawful presence bars described under INA 212(a)(9)(B)(i). According to INA 212(a)(9)(B)(i)(I), an alien who was unlawfully present in the United States for more than 180 days but less than one year, and who then departs voluntarily from the United States before the commencement of removal proceedings, will be inadmissible for three years from the date of departure. According to INA 212(a)(9)(B)(i)(II), an alien who was unlawfully present for one year or more and then departs before, during, or after removal proceedings, will be inadmissible for ten years from the date of the departure.

The provisional waiver would only apply to the three- and ten-year unlawful bars mentioned above. Aliens who require immigrant waivers for one or more additional grounds of inadmissibility, such as fraud or willful misrepresentation or certain criminal offenses in conjunction with their immigrant visa applications must continue to request those waivers while outside of the United States in accordance with existing procedures.

According to INA 212(a)(9)(B)(v), an immigrant waiver of the unlawful presence bars is currently available in the case of the spouse or son or daughter of a United States citizen or of an alien lawfully admitted for permanent residence. However, the alien must establish that the refusal to grant the waiver would result in extreme hardship to the alien’s U.S. citizen or lawfully resident spouse or parent. The proposed regulatory change would not modify the standard for assessing eligibility for unlawful presence waivers; it would only change the timing of when such a waiver could be obtained.

DHS also intends to limit who may participate in the provisional waiver program to immediate relatives who can demonstrate extreme hardship to a U.S. citizen spouse or parent. Immediate relatives who can demonstrate extreme hardship to a U.S. permanent resident spouse or parent may still qualify for a normal immigrant waiver but are not eligible to seek a provisional waiver under this program.

This provisional waiver process would not alter the requirement that an alien depart from the United States to apply for an immigrant visa. An alien who receives a provisional waiver of the unlawful presence bar would not gain the benefit of such waiver unless he or she departed from the United States. This is intended to prevent such aliens from seeking permanent residence from within the United States by means of adjustment of status.

While these are only proposed changes, they represent a step in the right direction for immediate relatives of United States citizens who have incurred an unlawful presence bar due a prior overstay.