By Attorney Henry Moyal
PERMANENT RESIDENT STATUS HAS ITS RESTRICTIONS
Q. I was a permanent resident of Canada in the early 1990’s. After settling in Toronto for almost a decade I married a USA citizen and moved to New York. I have not been back to Canada for about three years.Unfortunately, my wife passed away and I now wish to resettle in Toronto. I never became a Canadian Citizen. Am I still a permanent resident?
A. My reply is yes and no. Yes, you are a permanent resident until the immigration department decides that you are not. This is usually in a formal hearing before the immigration court. Your permanent resident document (which is a piece of paper) should have been replaced by the “Permanent Resident Maple Leak Card” . Applications to obtain the PR Card can be mailed in Canada and takes six months to process. It has your photo and biometric information on it to avoid fraud. The problem is however that if you have not been in Canada for so long then they may not issue you the card and deem that you are not a permanent resident.
The benefit of having the PR Card is that you can travel into Canada.Permanent residents of Canada cannot use the old landing documents to enter Canada by boat, air or commercial vehicle. HOWEVER, there is a loophole. You are able to drive (or walk) into Canada in a private car with only the old permanent resident document.
Another issue is that the new laws require residence of 730 days within five years (s. 28(2)(a) of the Act). That means that you can technically be outside of Canada for three years with no problem. I cannot determine exactly how many days you resided in Canada and you should seek professional help to determine the calculation. If you are beyond the years, you may not be a permanent resident and may have a problem.
If you cannot enter Canada and were refused a visa to enter you have a right to appeal to the Immigration Board in Canada within sixty days of your refusal pursuant to Immigration and Refugee Protection Act. At the hearing you have the right to argue humanitarian and compassionate grounds such as the loss of your wife. Good Luck.
Q. I am a model in New York. I have been in touch with a company in Canada who wants to hire me to design some clothes and work on a cover of a local magazine. Do I need a work permit?
A. You have not indicated your status in the USA. If you are a USA citizen it may be possible to enter Canada to work through NAFTA free trade depending on your education and duties to be performed. If you are only a visitor in the USA you will need to obtain a work permit.
Q. I want to apply for permanent resident status but not include my spouse in order to reduce the amount of settlement funds required. Is this possible? does my husband have to immigrate with me?
A. You must declare your spouse on the application. Your spouse does not need to immigrate but still must comply with all requirements including application forms, photos, medicals and police clearances. In reality the application is identical except that you do not pay the government fees for your spouse (because he is not getting a visa). Most people simply have their spouses included because all the work is the same and in the long run saves time since you will have to pay the government fees later when he is sponsored.
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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