Selecting an advisor for your immigration representation
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Selecting an advisor or third party representative for your application is an extremely important first step in making a plan to immigrate to Canada. Many mistakes that are made at initial phases of an application cannot be undone, as deadlines are missed and representations are made that cannot be unmade. So, starting well generally means ending well.
One of the first things to be aware of is that Immigration, Refugee, and Citizenship Canada (IRCC) does not allow representation without disclosure. This means that if a person is representing you on an application, they must fill out and sign a Use of Representative Form, that must also be signed by the person concerned. Once that Form (IMM5476E) is signed and submitted with the application the representative then becomes the contact point for the application, and has access to all of your information that is on the immigration file. Further IRCC will then recognize and respond to that representatives inquiries. If the form is not used and IRCC determines that you used a representative, they can refuse the application on the basis of misrepresentation in the failure to disclose a third party representative.
A representative must fall into one of 3 categories: a practicing lawyer that is a Member of a Provincial Law Society in one of the provinces or territories of Canada, a representative that is licensed under the Immigration Consultants of Canada Regulatory Council (ICCRC), or an unpaid representative that is a relative or friend acting without compensation. Unless the representative fits one of these 3 categories they are not permitted to use the form IMM 5476E and become a disclosed representative. Using an unregulated consultant or other person that does not fit under these categories can have serious negative consequences on your application. IRCC can refuse to process the application on the basis that the representative is not recognized. They could also accuse you of having materially misrepresented, which could cause the application to be refused. Further, they have no control over an unregulated consultant and therefore are unable to assist if that consultant has dealt with you in a fraudulent or negligent manner.
Dealing with a lawyer instead of another type of representative (regulated or unregulated), has some material advantages:
A lawyer’s conduct is government by the Rules of their Law Society. Although Regulated consultants under ICCRC also have an ethical code of conduct, Rules of the Law Society for various provincial bodies that govern lawyers require strict adherence failing which disciplinary actions can follow against the lawyer.
A payment to a lawyer in trust means that the funds are governed by strict lawyer’s trust rules and must be accounted for in accordance with Law Society Rules regarding trust monies. There is recourse to members of the public if they believe these funds are being mishandled. Non-lawyers are not governed by these strict trust rules that were put into place to protect the integrity of the legal system and members of the public.
A lawyer has received a minimum of a 3 year legal degree (usually after the completion of a first bachelor’s degree) which is then followed by a year of supervised practice, before they can practice independently. Generally speaking this level of training is more broad in scope than just training in immigration matters, and covers a wide range of legal issues that may be relevant in any given immigration application, including matters related to family law, criminal law and administrative law which often affect immigration matters. By comparison, an unregulated consultant has no minimum training. Unpaid persons acting as consultants who have no minimum training and ICCRC licensed consultants have only received immigration specific training according to their specific curriculum (typically a consultants ICCRC course consists of a series of immigration modules or semester that they have to complete). Usually this training takes between one to two years to complete all of the required modules.
In selecting a lawyer, one could review the Law Society where the lawyer is regulated and determine whether there are any recorded complaints or disciplinary actions against that lawyer. If that lawyer has been disciplined for unethical or other conduct the Law Society governing that lawyer has information that is publicly available. Such information is also available for Regulated Consultants but there is no such information for unregulated consultants or unpaid persons who are advising you.
In selecting any advisor whom you are not familiar with, it is always best to seek a referral from a trusted person who may have had previous experience with that advisor. Secondly, in seeking to determine whether to engage that person it is best to ask if they have had previous experience with the type of matter that you are seeking their advise or representation concerning. Also, you may wish to set up a consultation with that person. Consultations fit into two distinct categories: free consultations in which the advisor is essentially selling their services and abilities to you, and paid consultations where you are dealing with a professional and asking for answers to specific questions. Exercising caution in going to free consultations as there may be a significant pressure on the person giving advice away for free to market their services to you at the same time. On the opposite end of the spectrum, feel justified in asking for specific advice to legal or immigration issues when consulting on a paid basis as you are paying for professional expertise and are entitled to ask for information concerning specific issues or problems that may be the reason that you are seeking advice.
Finally, with respect to fees, be wary of paying for large fees on the basis of receiving a guaranteed job offer (LMIA) or other guaranteed service. In the situation of buying an LMIA or paying a large sum for its processing, a representative is prohibited from charging an applicant or job seeker for that service. It is against ESDC rules and may be in violation of certain provincial legislation as well. Only employers can be charged fees for processing LMIAs. Secondly, no advisor should be able to guarantee a result, as the results of an immigration matter rests in the hands of the relevant government authority. On the other end of the spectrum also be wary of free services as well, as the adage “you get what you pay for” comes to mind.
Our firm has trusted and experienced legal advisers, including many of us who have specialized in immigration matters for decades. Do not hesitate to reach out and contact us if we can be of assistance to you!