Your gateway to Canada

By Attorney Henry Moyal

OUT OF STATUS APPLICANTS STILL HAVE GOOD OPTIONS

Q. I arrived in the USA approximately five years ago as a tourist. I have not extended my status and I overstayed. My wife and children are in the Philippines. I am working in the USA as a caregiver for an elderly man but I am a dentist by profession. In fact, my wife and I met while we worked at the same dental clinic and we have the same amount of experience. I have some friends in Vancouver who have encouraged me to come to visit but I have doubts about obtaining a USA from here. I would be interested in immigrating to Canada but do not know how or whether I need to return to my home country to file the application.

A. In my opinion, you are unlikely to obtain a visitor visa to Canada at this time. The Canadian Consulate in USA will no doubt see that you have overstayed your USA visa, so they will think you will do the same in Canada. The better news for you is that you do not have to live in perpetual limbo. It is indeed possible to file the application while you remain in the USA. It also appears that you and/or your spouse qualify as immigrants as your occupation is in demand in Canada.

Q. I am married to a Canadian Citizen. We are living outside of Canada. Does my sponsor need to return to Canada to file the application? how long will it take? Can I enter Canada and file the application from inside the country?

A. Yes, your spouse can sponsor you either inside of Canada or outside. She does not need to return to Canada to file the application and we can file on her behalf at the local immigration processing centre. You have not stated if you have a visitor visa now to enter Canada. If you do, and if you enter , it is possible to apply from inside Canada but that process will take longer. On average, a spousal sponsorship from outside the country will take about 6 months and double that time if processed inside the country.

Q. I am a new graduate in physical therapy. I am single and have three sisters who are Canadian citizens. I want to apply as an immigrant. How do I go about that?

A. You must have a minimum of one year of full time work experience. That is the threshold to at least get yourself inside the door. While I do not have much information to assess your case, you need at least 1 year of work to even start. So without that you are not qualified as a skilled worker. However, depending on where your sisters live, it may be possible for them to sponsor you if there is a program in their province of residence.

Q.I am trying to find any possible way to get my nephew to Canada. His father (my brother) abandoned the family home where he was a child and his mother recently lost her job. My husband and I send money on a regular basis to support them but would rather sponsor him to Canada. He only has a high school diploma and has been doing odd jobs the last few years. At the age of 23, I am well aware that he cannot be adopted and that he does not have a chance to be an independent immigrant. My classmate recently sponsored her niece to Canada and the immigrant visa was recently issued from the embassy. I am not sure how that was done but if you can think of any practical ways it would be appreciated.

A. As soon as an applicant turns into an adult, the applicant must qualify on their own merit. In many cases, a relative in Canada can help add points to their case but it is not a sponsorship. Usually, a post secondary diploma or degree is required to qualify with some work experience. It does not seem like your nephew is qualified under that category. Another option available is to sponsor your nephew under the family class category. Please note however, that to qualify for it a sponsor (“the Canadian Citizen or Permanent Resident) must be practically “alone” in this world. In other words, if the sponsor is unmarried, alone and whose parents and grandparents are deceased and there is no one else to sponsor, then the Canadian can select any other relative regardless of age to sponsor. While I do not have all the facts of your friend’s case, it seems as if that is the manner the niece was able to immigrate under the family class. It is quite rare but becoming more and more popular as it is a law that many people are not aware of.

Q. I have already applied for permanent residence under the live in caregiver program. My work permit has recently expired but I was told that I do not need to renew it until I obtain my permanent residence? Is that true? Also, I was recently informed by my employer that I will be released. I want to work for another worker. Do I need a new work permit or should I just wait for the permanent resident visa?

A. Please read this carefully as it is important that you have complied with the requirements. It gets technical and errors can result in refusal of your permanent residence. As you may or may not know, you are only eligible to be a permanent resident under the live in caregiver program if you are the holder of a valid work permit. You have stated that you already applied for permanent resident. Did you apply for an open work permit at the same time? if not, you must apply for renewal of your current work permit immediately. If you did apply for an open work permit at the same time of the resident application, then you do not have to renew the current work permit as long as you remain working for the same employer. If you want to change employers, you must apply for a new work permit.

Q. I sponsored my wife to Canada but the application was denied. She was interviewed at the Canadian Embassy and was asked several personal questions about our relationship. I think my wife just got nervous as she has no experience with being interviewed by anyone. Was I required to go with her? I thought the interview was only a routine matter and she was going to get a visa. Now, she has been refused and I am not sure what to do at this time.

A. Most of the time when the embassy convokes an applicant for interview in a spousal application, there is a definite purpose for it. In other words, they want to make sure the relationship is genuine and not a “marriage of convenience”. The onus is upon you to prove to immigration that the relationship is genuine and not vice-versa. If that means you need to travel with her, then that is up to you (but not required). Unfortunately, the application has already been refused but that does not mean it is over. You have a right to appeal within 30 days.

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 phone 416 733 3193 or email www.moyal.com