Canada - Visalaw International member Sergio Karas has been chosen to receive the new Platinum Client Champion award established by Martindale-Hubbell.
Fewer than 1% of attorneys have achieved Martindale-Hubbell's newest award, making Mr Karas part of an elite group. This award recognises Mr Karas' approach and commitment to the best in client service and will appear on Mr Karas' Lawyers.com and Martindale.com profiles to confirm credibility for consumers. It is awarded to lawyers who receive frequent reviews of at least a 4.5 client rating average.
Jason Susser of Siskind Susser Immigration lawyers recently published the following Article entitled, “Who, What, When, and Why: E-2 Israel: What is the E-2 Treaty Investor Visa?"
E-2 is a non-immigrant visa classification available to investors who are citizens of countries that have a treaty of commerce and navigation with the United States. Under these bilateral treaties, the US and its trade partners negotiate reciprocal investor visa programs for nationals of the foreign country to make a substantial investment in a business and obtain a visa for the purpose of directing operations of his or her new investment.
E-2 is not a means of obtaining permanent residence (a Green Card) in the US. In many cases, foreign nationals come to the US in E-2 status and later obtain permanent residence through other means such as increasing their investment and job creation plan to satisfy the EB-5 Immigrant Investor Program or using non-investor categories such as EB-1 Extraordinary Ability or EB-1 Multinational Manager.
The E-2 program though lends itself to long-term business as there is no limit to the number of years in which a person may be in E-2 status. Countries negotiate reciprocity agreements which determine the length of time the visa itself will be issued, but in many cases foreign nationals are able to stay in their initial E-2 classification for as long as seven years by making calculated exits and re-entries, before having to reapply.
Who qualifies for E-2?
To obtain an E-2 visa to the United States, nationals of a treaty country must invest or be in the process of investing a substantial amount of capital in a bona fide enterprise in the US. The enterprise must be a real and operating business, as opposed to a paper organization or passive investment (i.e. it should be producing a service or commodity).
Unlike the EB-5 program and many programs around the world that give residency for a certain investment amount, the investment for E-2 must simply be substantial. To determine whether an investment is substantial, the US government uses a proportionality test to decide whether the investment amount is substantial in relation to the total cost of the enterprise. Therefore, the type of business in which a foreign national is investing will likely determine the amount of capital needed to satisfy the requirement. Many practitioners point to the figure $100,000 as the minimum investment amount; however, while larger investments may strengthen a case, satisfying the proportionality test for the particular business is the true test.
The foreign national investor must also ensure that his or her investment is at risk. This means that the investment is at risk of loss to the investor, but also has the potential to generate financial returns. Furthermore, the E-2 investor must actually develop and direct the investment enterprise, again making E-2 the wrong immigration option for those looking at passive investments.
Why do Israel and the US need E-2?
Israel is, of course, one of the most innovative start-up nations in the world, and a world leader in technology, medicine, cybersecurity, and other industries. Scaling those businesses internationally often involves doing business in the United States. The lack of visa categories available for entrepreneurs and investors in the US can make growth painful for Israeli companies looking to break into US markets. The E-2 visa allows investors to create US operations in an efficient way. While other visa categories such as L-1 (Intracompany Transferee Visas) can be used, they do not have all the benefits E-2 offers to investors and eventually to employees of an E-2 enterprise.
When will E-2 be available for Israel?
Here lies the million-dollar question. E-2 is available to nationals from dozens of countries ranging from the European Union to Pakistan. Many of these treaties leave immigration lawyers scratching their heads, but the most notable absence is the State of Israel - a friend, ally, and major trade partner of the Unites States.
In June 2012, President Obama signed legislation finally making Israel a treaty country for E-2 visa purposes. In the five years since then, experts have been predicting E-2 is right around every bend. However, structuring the reciprocal investor visa program has proven to be a challenge in the Knesset. Israel has created the B-5 visa for US investors as the counterpart to E-2, but the negotiations between the two countries have continuously hit road bumps on issues of reciprocity.
The US Department of State gave everyone hope by suggesting that the E-2 program would be available in October 2017. Yet the US was unsatisfied with the latest version of the B-5 visa program, and has returned the regulations to the Knesset with comments to be considered before the bilateral agreement can begin.
Israeli investors and entrepreneurs looking to US markets should become familiar with the options currently available, such as the previously mentioned L-1, the E-1 Treaty Trader visa, and the potential options to permanent residency. Israeli companies looking towards the US marketplace should know that the E-2 visa is going to become available. While the timeline has proven to be uncertain, the day will come where investors and entrepreneurs can more easily conduct business between the US and the Start-up Nation.
Canada - Federal Court issues 2 divergent rulings on whether job-experience requirements can rule out Canadian candidates
The following article by Sergio Karas was published in the August 30th edition of Canadian Employment Law Today.
"Weighting experience in the foreign worker search"
Two recent cases highlight the difficulties that exist with the current Labour Market Impact Assessment (LMIA) process. The main question before the Federal Court in these cases was what kind of evidence regarding labour market conditions can be relied upon by a Temporary Foreign Worker Unit officer, and how it must be disclosed to an employer?
Generally, Canadian employers are only permitted to recruit foreign workers if they can’t find Canadian candidates to fill open positions. But how important is previous experience when it favours foreign workers over Canadian ones? Two recent decisions by the Federal Court addressed whether experience should be factored into LMIAs and came to different decisions.
To read the full Article click here
Sergio Karas was quoted on 13/08/2017 in the Toronto Star in connection with the case of a paralegal who defrauded hundreds of clients from around the world and absconded, stealing more than $1 million.
Mr Karas, who was not involved in the case, said he was not surprised by the complaints but was shocked by the hefty fees the paralegal charged.
“The amount of fees he was charging was incredibly high, over and above what lawyers would charge for the same kind of work,” Karas said.
“This case really highlights the need for Ottawa to revisit the issue over who can practise immigration law in this country.”
Paralegal found guilty of defrauding immigrants ‘appears to be on the run’
By Nicholas Keung, immigration reporter.
A professional watchdog revoked the licence of Victor Manuel Castillo Garcia for misappropriating over $1 million, using fake documents and offering immigration services for which he wasn’t licensed.
Victor Manuel Castillo Garcia, who was licensed as a paralegal by the Law Society of Upper Canada in 2010, worked with clients from around the world — including Taiwan, Cuba, El Salvador, Saudi Arabia, Dubai and Peru — for their permanent residence and work permit applications.
The paralegal also failed to provide statements of account for money received from clients and instead, established a company, VIPA Financial, to receive payments and offer “financing” and credit to clients — an apparent conflict in interest, a law society disciplinary tribunal found.
Not only did the clients lose their money, they were unable to retrieve their original documents submitted to the paralegal for their applications, said the tribunal in its decision.
In one case, the paralegal partnered with an agent in Taiwan in 2013 to bring in 180 applicants for jobs in Canada at a price of $5,500 each.
More than $1.1 million was deposited into the man’s account, which was not a trust account as required by the law society, according to the tribunal.
Immigration laws stipulate paralegals can only represent refugees for their asylum claims, and must register with the Immigration Consultants of Canada Regulatory Council to offer other immigration-related services. Garcia was not a member of the group.
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Sergio Karas published an Article entitled " Employer applications for TFWs deserve fair assessment: Court" in the latest edition of " Canadian Employment Law Today".
The Article considers the case of an employer who was unaware of the information that an officer used to deny a foreign worker application and was not given the chance to address it.
To read this Article click here
Karl Waheed published a document entitled "Client Alert - Professional Immigration News" on 21st November 2016. This document explains the effect of the implementation of "The Law on the Rights of Foreigners in France" dated 7th March 2016. It covers all the decrees and orders that have followed establishing the legislative and regulatory framework for professional immigration in France. To read the document please click here
An Article by Sergio Karas entitled, “Court sides with employer in dispute over foreign worker wage calculation“ was recently published in, “HR Reporter. The National Journal of Human Resources Management”. To read this Article click here.
This Article was previously published in, "Canadian Employment Law Today". See Canada 10/10/2016 below.
Sergio Karas published the following Article in the latest edition of " Canadian Employment Law Today".
"Court sides with employer in foreign worker wage calculation dispute. Confusion over what data to use in calculating prevailing wages for an occupation in a certain region."
THE FEDERAL Government's changes to the Temporary Foreign Worker Program and Labour Market Impact Assessments have kept employers employing foreign workers busy. Between getting up to speed on the changes and changing their practices to meet the new legal demands, it's not uncommon for employers to be confused over
some of the new requirements.
It can add to the confusion when the officers doing the assessments aren't consistent on some of the requirements — such as what happened when one employer's application became problematic when different data was used to determine wage levels the employer must follow.
Employers familiar with the Labour Market Impact Assessment (LMIA) process are aware that, in order for an application to be successful when requesting authorization to hire a foreign worker, one of the criteria that must be met is the requirement to pay the prevailing wage for the position being offered. However, the Immigration and Refugee Protection
Act (IRPA) and the Immigration and Refugee Protection Regulations (IRPR) do not specifically define how that prevailing
wage, which varies from region to region, must be calculated.
In Paturel International Co. v. Canada (Minister of Employment and Social Development, the Federal Court decided that the prevailing wage in the circumstances of that case had been set too high and the Temporary Foreign Worker Program (TFWP) officer committed a reviewable error by relying purely on data relating to median wages in the geographical area where the employer was located, which were not representative of the wages paid by employers in the region.
To read the full Article click here
Canada - Illegal immigrants not entitled to injury compensation from public funds: Ontario Court decides.
Sergio Karas was quoted in the National Post on 29th September 2016 in an Article written by Adrian Humphries.
The Article considers the implications of a recent case in which a claim for compensation out of public funds by a person injured in a car accident was refused by the court in Ontario on the grounds that the victim did not have legal status. Mr Karas stated that "The case highlights limits placed on immigrants without legal status in Canada. This case should sound a cautionary note for those individuals who have obtained driver's licences and drive motor vehicles without immigration status ". To read the full Article click here.
Canada - Changes cause headaches for foreign work application. Employer's application to Temporary Foreign Worker Program denied after interpretations of the 2014 changes made its application incomplete.
By Sergio Karas
An Article under the above title, written by Sergio Karas, was published in "Canadian Employment law Today" on 27th May 2016.
Recent changes to the Temporary Foreign Worker Program ( TFWP) have caused considerable difficulties to employers looking to hire temporary foreign workers. June 2014, the federal government implemented significant modifications to the program and replaced Labour Market Opinions ( IMOs) with a more complex regime of Labour Markey Impact Assessments ( LMIAs). The changes include a strict interpretation of advertising and compliance guidelines that employers must follow in order to avail themselves of the TFWP, increased scrutiny on reasonable efforts to hire Canadians, monitoring of wages and working conditions and a consideration of proposed transition plans to eventually replace foreign workers with Canadians or permanent residents. The new TFWP regime has been the subject of recent litigation dealing with the interpretation of these guidelines.
The Article examines recent decisions and their implications.
News from Visalaw International members around the world.