New LCP legislation, not for everyone
By Faye Arellano
While waiting for the final word on the new changes to the Live-in Caregiver Program (LCP), hopes may have been dashed for thousands of caregivers who have been excluded from the benefit of the Juana Tejada Law.
Touted as the first proposed change to the LCP, the Juana Tejada Law eliminates the requirement for live-in caregivers to undergo a second medical examination when applying to become permanent residents. This second examination is widely perceived as unnecessary because caregivers are required to pass a medical examination prior to their initial entry into Canada.The change is being implemented in honour of the late Juana Tejada, a live-in caregiver who developed cancer and was deemed inadmissible as a result.
Caregiver advocate and immigration lawyer Rafael Fabregas estimates that at least 40,000 caregivers who are already in Canada will not be covered by the amendment. Misinterpretation of the changes could cause some people to suffer dire consequences, according to Fabregas, who is one of the proponents of the Juana Tejada Law.
It was only by ministerial intervention on humanitarian and compassionate grounds that Tejada was granted her permanent residence status. Tejada later succumbed to her illness.
Many of the caregivers likely excluded are the very people who, like Juana Tejada, advocated for the removal of the second medical examination. As the hoopla subsided and the dust settled, more and more caregivers are wondering whether or not they would be covered by the new legislation.
“It would be nice to be exempted from undergoing a second medical test and be spared from paying the $125 examination fee,“ said Gina, as she and other nannies were huddled in a corner of a parish hall mulling over the proposed amendment.
The removal of the second medical examination, hailed earlier as a victory for all the nannies, has come under close scrutiny since many caregivers and community workers remain unsure of its applicability.
The Regulatory Impact Analysis Statement (RIAS) issued recently by the Citizenship and Immigration Canada (CIC), states that instead of requiring caregivers to complete a medical examination when they apply for permanent residence, applicants have to complete a medical examination to qualify for the initial work permit/temporary residence as a live-in caregiver.
It further states that applicants who have medical conditions which would cause an excessive demand on the health or social system in Canada would be deemed inadmissible.
RIAS also indicates that processing times for applications for permanent residence are not expected to be impacted by the elimination of the second medical examination.
In the wake of the announcement of the amendments, set to take effect after the 30-day comment period which ended on January 19, 2010, concerns were raised over the confusion and misinformation faced by caregivers and community workers alike.
Lawyer Fabregas cautions against the danger of being misled by the new regulation because of “plain language interpretation”.
Fabregas said that it is essential that people are clear on who qualifies to benefit from this new legislation.
In his letter to Maia Welbourne, CIC’s Director of Temporary Resident Policy and Programs, Fabregas asked for clarification on the current wording of the proposed legislation, saying “it does not provide such a clear limitation, and thus may reasonably be interpreted to mean that the change will apply immediately to all live-in caregivers, including those in Canada.”
Referring to RIAS, Fabregas stressed that only those live-in caregivers whose applications for work permits are pending overseas, and whose medical examinations conducted along with said application have not been assessed, by the time of implementation can avail of this change in the LCP.
“Conversely, live-in caregivers who arrived in Canada prior to the implementation of this change will still be required to undergo the second medical examination when they apply for permanent residence,” Fabregas wrote in his letter.
He said that he has received many inquiries from live-in caregivers and community organizations who were surprised to hear that the amendment will not apply to new entrants to the LCP and that caregivers who are already in Canada will still have to pass the second medical examination before being granted permanent residence.
It is not until the year 2012 that all caregivers will have the full benefit of the Juana Tejada Law, according to Fabregas, adding that the removal of the second medical examination is long overdue.