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In-Canada Spousal Work Permit Policy

February 1, 2015 admin_jicdesign

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SINCE 2004, IF A SPOUSE or common-law partner was sponsored for permanent residency from inside Canada, he or she could apply for an open work permit by filing an application to change the conditions of the visit before the expiry of status. Such an application was put into the same envelope as the sponsorship application. The resulting work permit would only be issued once the application for permanent residence was “approved in principle”, which at one point happened about six months after filing, but which more recently was more likely to occur after twelve months or longer.

It is and has been a good thing that there is an option for foreign nationals who are married to a Canadian and who are living in Canada allowing them to apply for permanent residency from within the country. It is also a good thing that they can get a work permit while they are here. However, a year is a long time for most foreign nationals to wait for the authority to work, and the delay creates hardship for couples who are in the meantime without the employment income of the foreign national.

It seems likely it was because of the lengthening processing time that Canada Immigration unexpectedly announced on December 22, 2014 that spouses and common-law partners who met specified criteria could be issued work permits earlier in the process – before the approval in principle. According to the announcement, which is available here, to be eligible the applicant foreign national spouse must:

Have filed an in-Canada spousal sponsorship and permanent residency application;
File the appropriate application form for the work permit;
In some cases, meet medical requirements; and
Pay the fee.

If these things are done the foreign national will get an open work permit, that is, one that allows the foreign national to be employed at any job in Canada for which an employer will hire him or her. The promise is that the work permit will be issued within four months of receipt of the application.

This is a welcome development that tips the balance in the direction of applying for permanent residency from within Canada, as opposed to outside of Canada. However, for those who were not in Canada at the time the announcement was made there remains a nagging issue: what does a foreign national spouse say to border officials about their intentions when they arrive at the Canadian border, or when they land at a Canadian airport?

Upon entry one must answer the examining officer’s questions about the reasons for the entry honestly. To say that one is coming to Canada only to visit is not an honest and complete answer if one is coming into the country to live with one’s spouse and to apply for permanent residency and a work permit. These parts of the plan should be declared if one wishes to avoid being challenged for having misrepresented one’s circumstances.

The problem is that once the complete plan is declared there is a serious risk the foreign national will not be admitted to Canada, as his or her entry might be seen as an attempt to enter Canada to live permanently without a visa that provides the authority to do that. In the experience of people I have spoken with, arriving at the border or airport with all of one’s possessions in tow, ready to make a life in Canada with one’s Canadian spouse is generally not positively received by Canada Border Service Agency Officers. Even without a lot of extra luggage, border officers are often suspicious of the intentions of those entering Canada to be with a fiancee or even a girlfriend.

The law does provide that one may have “dual intent” upon entry, that is, an intention to live in Canada permanently if ultimately authorized to do so AND also the intent to leave at the end of the visit if not authorized to live here permanently. However it is an open question as to in which circumstances the officers will recognize the dual intent and permit this entry and which they will not.

Without some clarity on this issue, it is difficult for couples to plan for their life together. Does a foreign national pack up his or her things and bring them to the border or airport, declare to the examining officer that he intends to enter Canada to live with or perhaps even marry his spouse, and then apply for permanent residency? Will the officer admit him or her in these circumstances?

After more than 25 years of practicing as an immigration lawyer, I have heard many stories about problems people have encountered upon entry to Canada, and I am sceptical. I would be interested to hear about your experiences!

Visiting Canada

December 23, 2013 admin_jicdesign

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Not as Easy as You May Think

FOUR HUNDRED YEARS AGO Sir Francis Bacon, the Great English philosopher and essayist, wrote that “Friendship increases in visiting friends, but in visiting them seldom”. While it is true that an occasional visit can go a long way to sustaining a friendship, these days it seems sometimes that, if the Canadian immigration authorities had their way, friends would never visit at all.

Over the years I have had many clients attend at my office complaining that their friends and family have been denied a visa to come to Canada to visit them. Invariably the Canadian host is hurt at not being able to reciprocate for the hospitality received overseas, and angered that their own government could be so callous and unfeeling.

Recently I heard another one of these stories, this one from a client living abroad who wanted to bring his girlfriend with him to Canada to attend a wedding of friends, to see the country and to experience Canadian culture. He and his girlfriend together filed the application for a visitor’s visa for the girlfriend. I received permission to reproduce the tale here. What follows is a précis of the account provided to me, with names, dates and places changed for privacy reasons:

We amassed all of the documents for the application and were given an appointment at the Canadian Embassy in Pretoria on September 14th. We had purchased return airline tickets (one of the suggested enclosures for the application) as well as a car rental, to and from Pearson Airport, for January 7th to February 8th.

My formal letter of invitation gave my word that my girlfriend would be staying with me at my house in Ontario (I enclosed a 2013 tax bill proving that I HAVE a house), and gave my word that we would be returning to Africa at the end of our stay.

Ten of my long-term friends, including distinguished university professors, lawyers, social workers and cultural workers took time out of their busy schedules to write letters of support, testifying to my honesty and integrity.  They also stated that I have known my girlfriend and her family for over two years and that in June of last year I moved to South Africa, with my dog, to be with her on a more permanent basis.

We travelled to the capital two days ahead of time to be certain we could find the Embassy and arrive in good time for the 8:00 AM appointment. Pretoria is a 12-hour journey, over three sets of mountains, from where we live.  We arrived in good time and only had to wait for two hours outside the visa office.

There were many delays because it turns out that the Visa Office only accepts certified cheques for the visa fee if they are certified by the bank used by the Embassy.  A number of people had to go and get new certification.  Our cheque was also for the wrong amount – ten rand too much – so of course we also had to go and change the amount and get it re-certified by the ONLY acceptable bank, apparently.

Many people also had to get the bar code from the application printed.  It says on the application that you can fill it out by hand if you don’t have a computer, but when it comes to the crunch, you actually HAVE to have the bar code, which can only be generated electronically.  Even the very patient South Africans were a trifle weary and impatient with this ordeal and this misinformation.

Our “interview” was with an unnamed woman who sat behind glass whilst we stood.  It lasted less than five minutes whilst she paged through the application.  She then gave us a slip of paper and told us to come back in a week.  I told her it was a costly 12-hour drive from where we live.  She replied that those were the rules.  I asked her if we came back in a week, would we get a visa.  She said “You will get the answer.”

After much discussion, we decided it was too far and too fatiguing to travel all the way back home, only to return in a week.  Instead, we imposed on the hospitality of friends who lived only four hours from the capital.

When we arrived for our second interview, I was told that my presence in line with my girlfriend would “cause problems” for the other South Africans in line.   I explained that, for the purposes of the application, I was her representative, and that we had submitted the correct forms for this.  No matter, they said, I’d have to wait somewhere else.  I left.

My girlfriend returned to the car some time later to say that our application had been rejected.  The second interview consisted merely of some of her documents being returned with a form letter, rejecting the application.  The form letter from the visa officer (unnamed) said “you have not satisfied me that you would leave Canada at the end of your stay as a temporary resident. In reaching this decision, I considered several factors, including: your current employment situation; and your personal assets and financial status”.

The officer also ticked the box which stated: “I am not satisfied that you have sufficient funds, including income or assets, to carry out your stated purpose in going to Canada or to maintain yourself while in Canada and to affect your departure.”

Clearly these reasons were disingenuous at best, since we submitted official dated and stamped documents proving that my girlfriend has, in fact, two jobs (her family owns and operates a successful and expanding business, my girlfriend manages the business, directs a related operation and also works as a contractor for another company) as well as the equivalent of about CAN$25,000.00 in her current account.

Apparently the return plane tickets, car rental, invitation from me, letters from ten of my friends and her financial records were not enough to satisfy the officer, or else he thought we were all lying to Canadian Officials.  Interestingly, the bank statement was NOT returned with the other documents.  I have written to the Embassy noting its absence and asking for a response.  I also asked for guidelines on how much money would satisfy the visa officer as sufficient to stay at my home for a month.  I have yet to receive a response.

As I have written above, this is just one of many similar stories I have heard, each one a tragic event for the persons concerned. I have heard them from Canadians seeking to bring in family and friends from a variety of different visa posts but, as visas are not required to travel to Canada from all countries, generally the stories involve visa posts located in or serving refugee-producing or economically-disadvantaged countries.

Why is it so difficult for Canadian government officials to be convinced to issue a visitor’s visa? Clearly Canadians want to visit with non-Canadians, and our transportation, commercial and tourist sector stands to benefit if visitors are allow to come here. No doubt in this case the couple marrying in Canada would have been delighted to have guests travel so far to celebrate their nuptials with them.

I believe the answer lies in the Canadian immigration authorities’ deep suspicion that some visitors may not be visitors at all, but may be seeking to come to Canada for unauthorized purposes, such as to work, to take advantage of our health or welfare system, or perhaps to remain here permanently.

While this approach to the issuance of visitor’s visas is an understandable method of protecting Canada’s financial interests and the integrity and viability of its social programs, it is extremely frustrating on the personal level, as my client aptly illustrated above. Further, it is contrary to a stated purpose of Canadian immigration law, which provides that it is an objective of the Act: “to facilitate the entry of visitors, students and temporary workers for purposes such as trade, commerce, tourism, international understanding and cultural, educational and scientific activities”.

My client and his girlfriend would no doubt have questions about the extent to which their visit to Canada was “facilitated”!

Increasingly the Federal Court is overturning visa office decisions that deny visitor’s visas perversely or without due attention to the materials filed. However, applying to court is an expensive remedy, and is not always effective, as even if the court agrees that the application was improperly refused, it is generally returned to the visa office to be reconsidered. From colleagues I have heard tell of reconsidered applications being refused a second time, despite the intervention of the Federal Court.

What can be done in the circumstances? Anyone who says that they can guarantee that a visitor visa will be issued to you is blowing smoke: there are no guarantees. However, if time and energy is invested in framing, completing and substantiating the application properly the first time you will stand a much better chance of success. Remember, each refused application adds a black mark to the record to be considered by the immigration authorities the next time you submit one!

For better or for worse

December 14, 2013 admin_jicdesign

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The Case of Jean Rosalie Morales Laomoc

HERE’S A RIDDLE FOR YOU: when is a marriage not a marriage? An answer that you may not anticipate is, “when it is assessed by Canada Immigration”.

The reason for this may be found in the law, and in the restrictive and guarded approach to its implementation taken by Immigration Officers whose job it is to remember that, even though a Canadian permanent resident or citizen may sponsor his or her spouse, there are exceptions to that rule.

The fact is that, even though a marriage may be binding legally, morally and in church, Canada Immigration may not be satisfied that it is legitimate for its purposes. Immigration Officers are required to apply the law, and the Immigration and Refugee Protection Regulations require that a marriage that is to be the subject of a sponsorship must be “genuine” and must not have been “entered into primarily for the purpose of acquiring and status” here.

Many spousal sponsorships have foundered on the rocks of those regulatory provisions. Jean Rosalie Morales Laomoc, for instance, discovered to her chagrin that love, romance, marriage, five years of cohabitation and a sponsorship application package were not enough for the immigration authorities, even though she tossed in a sheaf of supporting documents for good measure. Her application for sponsorship was refused.

Recently, upon appeal to the Federal Court, the Immigration Officer’s decision was reversed. In his decision Mr. Justice Campbell states:

In my opinion, given the volume and apparent relevance of the documentary evidence to the issues under consideration, the Officer was required to carefully consider the evidence and to make findings with respect to its relevance and weight. I find that the Officer’s apparent failure to perform this requirement renders the decision unreasonable.

So, in the end, in this case at least, the application for sponsorship and landing was sent back to a new immigration officer for reconsideration and hopefully, but not necessarily, for the issuance of a permanent resident visa.

Left unsaid by the Court, however, are all the legal costs and the one-year delay (so far) that the couple has experienced in returning to the starting point of filing the application in the first place. These might have been avoided if comprehensive legal submissions were filed at the outset, or if Jean and her spouse were better prepared for the immigration interview.

This case reminds us that an ounce of professional legal advice surely is worth a pound of doing it yourself. Getting the job done right in the first place spares no end of grief. If you would like to read the case, you can find it here.

It’s a Bird, it’s a Plane, it’s Super Visa!

November 6, 2011 admin_jicdesign

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IF YOUR MOTHER lives in Kenya, your father in Argentina, or your grandparents in Tanzania, you could expect to wait over eight years to sponsor them to immigrate to Canada after filing an application to do so. In the meantime, getting them here for visits with their children or grandchildren could be a serious challenge.

On November 4, 2011 the Government of Canada announced the creation of a new program to address the problem it calls Phase I of the Action Plan for Faster Family Reunification. The new program, which was authorized as a ministerial instruction under subsection 87.3(6) of the Immigration and Refugee Protection Act, facilitates the coming to Canada of parents and grandparents of Canadian citizens and permanent residents.If the situation overseas is unstable, your elderly relatives infirm, or your children in need of the love of a grandparent, processing times like these can seem interminable.

The problem, according to the Government, is that there are some 165,000 applications for the sponsorship of parents and grandparents waiting in the queue for permanent residence, with another almost 40,000 applications being added to that number every year. Given limited manpower resources to process applications, and the practice of giving priority to the applications of spouses, dependent children and skilled workers, wait times for the processing of the applications of parents and grandparents threatens to become “completely unmanageable”.The solution implemented by the Government has four parts:

It will increase the number of parents and grandparents admitted to Canada from 15,500 (2010) to 25,000 (2012);
It has introduced a new “Parent and Grandparent Super Visa”;
It has committed to consultations on the design of a sustainable program; and
It has declared an immediate 24-month moratorium on the filing of new sponsorship applications for parents and grandparents.

There is some excitement about the new “Super Visa”, which comes into being December 1, 2011. It is in effect a multiple-entry visitor’s visa like those currently in existence, except that instead of allowing a six-month visit, it authorizes the visitor to remain in Canada for up to 24 months at a time during its ten-year term. The Government says such visas will be issued quickly, so that parents and grandparents can join their families here within eight weeks, rather than the eight years it was formerly taking to process visas through some posts. Of course now they will be coming as visitors, whereas before they came as permanent residents.

To obtain a Super Visa a parent or grandparent must apply from outside the country at a Visa office. He or she must meet the usual visitor requirements, which includes demonstrating a willingness and capacity to return to their country of origin when the visit is over. Now, however, they must also:

undergo a medical examination, unless they come from an exempt country;
demonstrate that they have purchased private Canadian medical insurance; and
provide a written commitment of financial support from a child or grandchild in Canada who meets a minimum income threshold.

Presumably applicants will also have to pay the processing fee for a multiple-entry visitor visa, which is currently $150.00.

Those applications for the landing of parents and grandparents which are outstanding will continue to be processed, as long as they are complete and were received by November 4, 2011. Those received after November 4 will be returned to the applicant. Outstanding applications can be withdrawn, although only a partial refund of fees paid will be made if processing of the application has begun. It is no longer possible to ask for humanitarian and compassionate consideration for the processing of overseas sponsorship applications for parents and grandparents.

We have not seen the fine print for the Super Visa, and so it is not possible to assess its merits authoritatively. At first blush, however, there appear to be many positives.

Previously many parents and grandparents were denied visitor visas. Presumably now the Super Visa, created especially for them, will be more liberally granted.

Formerly those visiting Canada could stay for only six months at a time. Longer stays required applications for extension of the term of the visit, which required the filing of an application and the paying of a fee. Now obtaining a visa will be an issue requiring attention only once a decade, and there will not be so much travel back and forth to Canada.

The Super Visa will allow parents and grandparents to spend extended time with their Canadian family, but not at the expense of the Canadian taxpayer.

There are some issues, however. A medical exam must be completed, and the implications for failing the exam may be severe if it means parents and grandparents cannot come to Canada.

Health insurance may not be available to all parents and grandparents. Those who can get it may be able to come to Canada and those who cannot may not be able to do so. Those who come as permanent residents will have access to government health insurance, while those who are visitors will have to pay for their own.

Of course, some citizens or permanent residents may not financially qualify to support their parents or grandparents. If they cannot do so, will members of their family be able to come as regular visitors? If not, will a two-tiered system develop, in which some in Canada can bring their parents here, and some cannot? From the point of view of the children and grandchildren, it will be difficult to justify such a disparity.

Parents and grandparents who come to Canada on a Super Visa for 24 months, particularly if they come back for a second or third such lengthy visit, will presumably lose their connection with their country of origin if they are here for such an extended period. If their property back home is sold, what will this mean for future visits to Canada? Typically, the fewer ties one has with one’s home country, the more suspicious border authorities are about admitting visitors to Canada. Will this be a problem in subsequent entries, or in obtaining a second Super Visa?

Also, will extended visits to Canada have tax implications for Super Visa holders?

Implementation of the Action Plan will cause more parents and grandparents to be admitted to Canada, but only from the backlog inventory of current applications. It is important to note that, according to the Government’s projections, this increase comes at the expense of business class immigration, which will be reduced by about 3,500; live-in caregivers, the numbers of whom will fall by 3,600; and spouses, 4,000 fewer of whom are expected to be admitted to Canada.

Elder parents and grandparents can provide Canadian and permanent resident children with a rich cultural education, with childcare and with an nurturing extended family environment. They can assist the parents of these children to realize their employment ambitions or assist them in their family business. They bring with them to Canada their financial resources, but more importantly, they bring their culture, their affection and their wisdom. They can make an important contribution to the country. If Super Visas facilitate this, they will be a welcome initiative indeed.

If you need assistance in obtaining a Super Visa, please let me know. Please note that there may be other ways for parents or grandparents to come to Canada, if a Super Visa is not available.

Morley Law Office

Canadian Immigration Lawyer Kingston

Morley Law Office

Currently Viewing Posts Tagged Family immigration

In-Canada Spousal Work Permit Policy

Visiting Canada

Not as Easy as You May Think

For better or for worse

The Case of Jean Rosalie Morales Laomoc

It’s a Bird, it’s a Plane, it’s Super Visa!

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