Your gateway to Canada


Immigration Newsweek

By Attorney Henry Moyal


Q. I have lived in Southern California for over 4 years. I entered USA legally as a visitor. I then found an employer to sponsor me for my H1B but it was filed too late. I am actually still working for that employer but without a visa. I was told that I can apply for a student visa (F1) but since I am out of status I am not too confident about my chances. I have an aunt in Canada who is willing to help me immigrate to Canada. She is elderly and cannot support me. In addition, I do not have an employer in Canada to petition me. What do you think my chances are? I do not want to live as an illegal and it is taking a toll on our family.

A. I will answer the simple questions first. The fact that your aunt lives in Canada is already a bonus. She does not need to sign documents or provide any money to immigration so her income is not relevant. As long as you can prove your relationship you will automatically obtain the bonus points when it comes time to apply for immigration to Canada. Secondly, you do not need a Canadian job offer to apply for permanent residence. Many people make the mistake of thinking that they cannot immigrate to Canada if they do not have a job offer. No offer of employment is required in order to qualify. Applicants also have the misconception that they cannot work in Canada unless they have an offer of employment. This too is not true. As an immigrant of Canada, a permanent resident is able to work and live anywhere in Canada. They are not restricted to a specific employer (as with a work permit).

The more difficult question is now to determine if you qualify. You have not provided sufficient information for me to give an exact answer so I will try to answer in general. If you have graduated from a university and have at least four years of work experience and a strong command of English then you are definitely on the right track. As well, additional points are given if you are married to a spouse who is educated. The best way to assess a case is to forward a detailed resume.

Q. I am a Canadian Citizen but living in Arizona. I left Canada over ten years ago. Two years ago I married a man in the USA. The problem is that my husband has no status in USA and was married before. I want to bring him back to Canada but I am not sure he will obtain a visitor visa? Can I sponsor him from inside Canada or would it be better to sponsor him from the USA?

A. You have mentioned that your husband was married before. Did he dissolve the first marriage before he married you? If yes, then that is good and your marriage to him is valid. If not, he was still legally married to his first wife and therefore your marriage to him is not valid. If it is not valid but you have lived together for over one year, you can apply as common law partners.

The next issue is regarding the sponsorship. I doubt the Canadian Consulate will issue him a visitor visa when they will see he overstayed his USA visa, so entering Canada as a visitor is a long shot. Your best bet seems to sponsor him for permanent residence. He can remain in the USA while the application is in process.

Q. I arrived into the USA as a tourist. I had an employer who wanted to help and he filed for an H1B work permit. Unfortunately, it was denied. I then married a USA citizen but was refused as well as they suspected it was a marriage of convenience. I have some friends who immigrated to Canada and they are encouraging me to immigrate there. The problem is that I do not have any relatives or job offers in Canada. Can I just apply and walk into Canada?

A. You will first need to apply and then qualify and then obtain a visa before you starting walking across the border. In contract to USA immigration law, you do not need any job offers to qualify. You do not need any relatives to help you. I am assuming you are single. If so, and if you have a bachelor degree and at least four years of work experience you may qualify on your own.

Q. I have heard of conflicting opinions on whether I need to return to the Philippines to obtain my Canadian work permit. I have an offer of employment from a company in Vancouver but my consultant in USA is telling me that I need to return to the Philippines to obtain the visa. I did have an H1B in USA but it expired so I am out of status. The local Canadian Consulate is telling me something else.

A. The bigger issue after reading your email is the dangerous and perhaps illegal advice you are obtaining from a non-licenced Canadian consultant on Canadian immigration matters. Only qualified Canadian (licenced in Canada) lawyers are able to provide professional assistance on Canadian immigration matters. Any USA consultant or USA lawyer (although licenced in USA) are not qualified to provide Canadian immigration advice (regardless of any statements in their website). Regarding your work permit, if you can show you entered USA legally you are able to file it within the USA. Once obtained, you can enter Canada directly from USA.

Attorney Henry Moyal is a certified and licensed immigration lawyer in Toronto, Ontario. The above article is general advice only and is not intended to act as a legal document. Send questions to Attorney Moyal by fax, phone or email