Your gateway to Canada

By Attorney Henry Moyal

CANADA vs. USA – DIFFERENT IMMIGRATION RULES

Q. I am writing to you from New York. I have been living illegally in USA for over a year and I am interested in relocating to Canada. I tried to have my current USA employer petition me for a work permit but it did not work out. I do not have a job offer in Canada nor do I have any relatives. Will it be difficult for me to pass without an employer?

A. Contrary to popular opinion, it is much easier to immigrate to Canada than to USA. In general, USA immigration is employment based which means the easiest and fastest way to enter the USA is via a work permit. After that, an applicant can “adjust their status” for permanent residence. Unless a person is sponsored by a close relative, rarely do people immigrate to USA directly and must enter first on a work permit (which means a person must have an employer first).

Canada is more or less the opposite. It is not so easy to enter as a worker (unless you have an employer with a validated offer of employment from Human Resources Canada) but much easier to immigrate if you qualify. A relative or a job offer would help but is not required. Therefore, if you are educated and have work experience in a skilled occupation you will likely qualify for permanent residence. The fact that you overstayed in USA is usually not a problem.

There are other noteworthy differences between the two systems:

1. USA has a priority date system that lets applicants know where their application is in the system. Canada does not.
2. Canada does not have a quota of the number of immigrants entering or for work permits. USA does, so if you are applying for example an H1B visa and the quota has been filled, you must wait until the next year.
3. Canada permits its visitors to renew their visitor status while in Canada much easier. After 9/11 USA has restricted the time a visitor can remain in the country and much more difficult to extend.
4. USA keeps a tracking system of who come in and out. Canada has no record of who / when a person leaves.
5. USA permits the sponsorship of siblings. While the application can take a decade to be processed, Canada has eliminated the sponsorship of siblings altogether.

Q. I tried to renew my visitor status and was refused. I was told that I can appeal the case within 90 days of the expiry. The problem is that I sent my application before the expiry and it took immigration nearly two months to send me the refusal. Does the 90 day appeal clock start at the time of the expiry or the refusal date?

A. Just to be clear, I believe you are referring to a restoration application, not an appeal which is made to the Federal Court. In my experience, Canada Immigration has used the refusal date as the start of the 90 day period to file the restoration application. Note as well, that the fee for the restoration application is $200 and not $75.

Q. I sponsored my parents two years ago. At that time I had a good job that paid well. There was no doubt I met the income level at the time of sending the application. I am told that my parents’ visa will not be ready for at least another year. I recently lost my job and I am worried that by the time the visa is ready I will be short of the income requirement. What if they refuse me? It is not my fault immigration took three years to process the case. Will they look at original income or the income when the visa is ready?

A. Perhaps both. Without question, a person must meet the income at the time of sending the application. Applications are date stamped and even if the officer looks at the case two years later, the sponsor must have met the income level for the 12 months preceding the application. The second part is a bit more tricky. Many times visa officers will not ask for updated income from the sponsor three years after but they have the right to do so. I have seen several cases where the sponsor met the income initially but failed to meet the income level when requested to do so years later. The result is a refusal which should be immediately appealed to the Immigration Appeal Division.

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