Okotoks family fears they will be forced to leave Canada following permanent residence rejection

WATCH: A family working to build their life and business in Okotoks fear they may have to leave the country. The Mexican nationals had their permanent residency in Canada rejected due to a discrepancy over the father's work experience. Blake Lough reports.

A family of four chasing the Canadian dream in Okotoks fear they may soon have no choice but to pack up their belongings and leave the country.

Mexican nationals Guillermo Rojas Vertiz Cervantes, his wife Irma Canut and their two children were certain they would obtain permanent residence over the summer, but were rejected by Immigration Canada due to the way an immigration agent defined “employee” versus “self-employed.”

Rojas Vertiz Cervantes – whose temporary work permit expires Dec. 1 and has not yet been extended – believes that without permanent residence, his family will be forced to return to Mexico.

“We are stressed and anxious. We don’t know what to do,” he said.

Investing in Canada

The family was introduced to Okotoks by chance during a trip to western Canada in 2013. Touring B.C. and Alberta, they stopped in the town on Halloween and picked up costumes to celebrate the holiday.

Rojas Vertiz Cervantes said he was struck by the kindness of the locals, and he and his wife decided it would be a good place to fulfill their dream of opening a café and restaurant in Canada.

Guillermo Rojas Vertiz Cervantes was refused permanent residence due to a discrepancy over his work experience.

Guillermo Rojas Vertiz Cervantes was refused permanent residence due to a discrepancy over his work experience.

Blake Lough / Global News

That’s how they met their realtor, Inge French, who quickly became one of their closest friends.

“They are the highest quality people I have ever met,” French said. “They’re delightful, they’re intelligent, they’re articulate, they’re educated, and their children are spectacular.”

Moving to Canada through an investor program, Rojas Vertiz Cervantes and Canut leased a property where they would open their business, Café Cancun.

Both Rojas Vertiz Cervantes and Canut own shares in the company.

“We have sold everything in Mexico in order to set our business here in Canada,” Rojas Vertiz Cervantes said.

In order to qualify for permanent residence in Canada’s Express Entry system, Rojas Vertiz Cervantes needed at least one year of skilled work experience as an employee, so he took on the job of director and manager.

An employee contract as well as pay stubs and tax returns provided to Global News showed Rojas Vertiz Cervantes worked and paid taxes as an employee. Even the work permit issued to Cervantes by Immigration Canada lists him as an employee.

In a ruling the family requested from the Canada Revenue Agency, it concluded Rojas Vertiz Cervantes worked as an employee.

‘Truly a nightmare’

All that information was submitted to Immigration Canada in the application for permanent residence.

But in July, the family received a letter from an immigration agent outlining “serious concerns” with Rojas Vertiz Cervantes’ application.

Citing the fact that he owned shares in the company he worked for, the agent deemed Rojas Vertiz Cervantes’ work experience as “self-employment.”

Under the Canadian Experience Class stream of Immigration Canada’s Express Entry system, self-employment does not count as skilled work experience.

The letter shocked the family.

“I am not self-employed,” Rojas Vertiz Cervantes said. “I pay taxes and the corporation pays taxes as a corporation.”

“We are good people, we are good, hard-working people.”

Rojas Vertiz Cervantes responded with a reconsideration letter, but a few weeks later the refusal letter arrived.

“I am not satisfied based on a balance of probabilities that your employment with Café Cancun Co. Inc. is not self-employment,” read part of the refusal letter.

Irma Canut says the worst case scenario for her family is that they will need to move back to Mexico after investing all they had into their Canadian business.

Irma Canut says the worst case scenario for her family is that they will need to move back to Mexico after investing all they had into their Canadian business.

Blake Lough / Global News

“We never expected it to be this way,” Canut said, “because we thought that we were doing everything as perfect as it could be. We didn’t want to take any chances.”

“It became a catastrophe when we received ,” she added. “We were not thinking of renewing our working permits because we were almost sure that we were going to be permanent residents by the end of the summer.”

‘Arbitrary’ definition

So why does Immigration Canada consider a person “self-employed” when seemingly all other documentation and branches of government consider him or her an “employee?”

Long time immigration lawyer Michael Greene – who is not connected to the case – said that when the Express Entry system was developed, Immigration Canada adopted a much narrower interpretation of employment.

Michael Greene, with Sherritt Greene Barristers & Solicitors, says there is no consistent definition of "employee" versus "self-employed" across federal government branches.

Michael Greene, with Sherritt Greene Barristers & Solicitors, says there is no consistent definition of "employee" versus "self-employed" across federal government branches.

Blake Lough / Global News

“One branch of the federal government says ‘you’re an employee’ and taxes you on that basis and the other branch says, ‘well, we’re not going to count that as employment for immigration purposes so too bad, so sad,’ ” he said.

Greene said he has seen this issue come up in immigration cases before and believes changes should be made to create consistency throughout all government branches.

“When we see something like this happen I say, is this really necessary? Should we be applying such an arbitrary definition and why are we applying a definition that’s different than what the CRA is applying?”

In an emailed statement to Global News Wednesday afternoon, Immigration Canada said an individual is required to have “skilled work experience through authorized employment by a third party,” adding that work experience is one of the biggest factors in an applicant’s success.

“The assessment of an individual’s employment status is undertaken on a case-by-case basis, considering their particular circumstances in conjunction with the supporting documentation. IRCC (Immigration, Refugees and Citizenship Canada) officers may consider a range of factors and indicators, including those available in the Employed or Self-employed? CRA guide,” the statement reads.

Immigration Canada did not provide an explanation on why it defines “self-employment” differently than other branches of government.

Worst-case scenario

“We are at a point where we don’t know what to do, we don’t know what door to knock, and we don’t know who to talk to on the phone,” Rojas Vertiz Cervantes said.

Even if the extension is granted when December hits, he would only be allowed to work at the café, which has been closed due to a separate legal issue with the building’s landlord.

Canut’s job at a local daycare alone would not be enough to support the family.

“The worst-case scenario is we need to leave,” Canut said.

“The decision of one agent is really affecting the future of the whole family,” she added. “I’m an adult, I can live with that. I can clean my tears and move on. But I have two kids that have made a whole life here that they can truly not imagine living away from here.”

“It’s really starting to come home that they might have to leave,” added French.

“For a family that is contributing to the community, that is not sucking any resources from Canada – they are contributing – the idea of sending them home? I can’t wrap my head around it,” she said.

The family has sent letters to their local MP, the office of Immigration and to the Prime Minister himself, hoping for some sort of intervention.

“I believe in Canada,” Canut said. “And I truly believe that someone will hear us and realize that we are not a number.”

Friends of the family have launched a GoFundMe campaign to support Rojas Vertiz Cervantes and Canut as they try to find a solution.

© 2018 Global News, a division of Corus Entertainment Inc.

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