By Attorney Henry Moyal
ABSENT RESIDENT MAY REAPPLY FOR IMMIGRATION
Q. I sponsored my brother in the late 1980’s to Canada. He became a permanent resident and lived in Canada for over ten years. He then lost his job and returned to the Philippines to secure employment. He has not returned to Canada for ten years. Can he return to Canada? Is he still an immigrant or does he need to start all over again?
A. Technically, your brother is still an immigrant. He is always an immigrant until a final decision is made on his permanent resident status and/or he is given a hearing to determine whether he has lost his resident status. Practically though, in my opinion it will be hard for him to win this case if he has not step foot in Canada for the last decade. What ties does he have in Canada? It also appears that he does not even have his PR card. If he is still holding on to the paper form landing document, he can’t even board an airplane to Canada. I suggest that he approach the Canadian Embassy and plead his case on why he wants to return. If he is deemed to have lost resident status, he will need to reapply from the start.
Q. How can I work as a nanny in Canada or USA? I believe I am qualified for each country.
A. As far as I know, there is no live in caregiver program in the USA that leads to immigration status. Under Canadian law if you work and are issued a work permit in Canada for 2 years within the first three years of arrival then you are eligible to apply for permanent residence in Canada.
When you apply for permanent residence you will be able to apply for your spouse and children.
However, please note that the time it takes to process cases has increased. See below.
Q. I have hired a Filipino caregiver recently. Actually, I have not officially hired her yet but her work permit application is in process. I am told that it would take at least two years to obtain her work permit from Manila and I cannot wait that long. I cannot find anyone to replace her and my kids like her. Am I putting myself in any sort of risk? I do not think I am violating any law since the application is in process.
A. Your letter does not provide information as to why the work permit application is not being processed in the USA. The Canadian Consulates in USA are processing applications faster than Manila so most caregivers in Canada go that route.
In any event, your biggest concern should be the fact that your caregiver is in violation of the terms of her visit in Canada by working illegally. She is at risk of being deported and of not being able to obtain a work permit.
Similarly, you as the employer are in violation of the immigration law stating that ” every person commits an offence who employs a foreign national in a capacity in which the foreign national is not authorized to be employed”
Therefore , technically you can be charged with violation the Immigration Act (IRPA). The fact that the case is merely in process is irrelevant.
Q. I sponsored my wife to Canada four years ago but did not include our child on the application. I was given poor advice and was advised not to include the child because our child was born prior to us being married? How can I now bring my child now?
A. You need to sponsor the child. It is clear that you lied on the application and you are aware that he should have been included. Saying “ my friends gave me bad advice” will not help you. You will need to cite specific compassionate reasons for not declaring the child. Canada immigration has recently published guidelines on how to assess such cases and have stated that they are more lenient and at least amenable to look at special circumstances regarding non-declaration of family members.
Attorney Henry Moyal is a certified and licensed Immigration Lawyer in Toronto, Ontario. The above article is general advice only and not intended to act as a legal document. Send questions in confidence to Balita or to Attorney Moyal by fax, mail or email canada@moyal.com
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