By Attorney Henry Moyal
OVERSTAYING VISA IS NOT A CRIMINAL OFFENCE
Q. I am trying to determine what my best options are with respect to becoming a permanent resident. I am a skilled nurse and I left the Philippines about four years back. I had both a USA and Canadian visitor visa. I first went to the USA and stayed for nearly two years. I overstayed my visitor status and then entered Canada. I have now been illegal in Canada for almost the same amount of time. I know it will take time to process my application but I want to be sure that it will a) succeed and b) that my overstay will not be deemed a criminal offence. I have heard that if a person has committed a crime then they are ineligible to apply for permanent residence.
A. In general, if an applicant has a university education and years of work experience they are on the right path. More information would need to be obtained regarding your dates of employment but it appears that you are qualified. Secondly, I do not see any provision in the regulations that makes an overstay a criminal offence. You are correct that a criminal offence can render a person inadmissible but an overstay will not show up on a routine criminal background check. I looked at the relevant USA provisions ( INA, Title 8) and IRPA. My understanding is that it is not a criminal offence to overstay one’s visit, though it is a criminal offence not to depart when you get a final order of removal (i.e. s. 1253, Title 8).
Q. I want to apply for permanent residence but want to include my children who are now residing in Singapore. Is there an age limit?
A. A principal applicant can include his/her spouse, common law spouse and all dependant children. A dependant child is either:
▪ a child who is under 22 and unmarried or
▪ a dependant child who is unmarried and over 22 but has been a continuous full time student from the age of 22 to end of application.
Q. I have graduated from a reputable university with a Bachelor and Master degree. I worked during the summers (4 months at a time) as a chemist for over one year combined as required by the regulations. I filed the application with the help of a consultant and recently I received a refusal letter stating that I did not have the minimum of one year of work experience. But I do! As well, how can they refuse the case without even asking for more information or calling me for an interview?
A. I must respectfully disagree with you. You do not appear to be qualified. One must know and read the fine details of all the regulations. It is not so black and white and for that reason it is crucial for applicants to hire a professional lawyer (not a consultant) who is qualified in immigration matters. In brief, the law requires that an applicant must have at least one year of continuous work experience in order to qualify. You don’t. Therefore, the embassy has no obligation to call you or convoke you for interview.
Q. I am in a common law relationship with a Canadian Citizen. We have lived together for over two years. The problem is that I am still legally married to my husband. I do not know where he is so how can I divorce him? My partner wants to sponsor me but how can he if I cannot divorce and an annulment seems unlikely.
A. He can still sponsor you as a common law partner. You do not have to divorce. You can still file the application if you are married as long as you can prove that you have separated from the first husband for at least a year.
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 canada@moyal.com
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