By Attorney Henry Moyal
SPOUSAL SPONSORSHIP CANNOT ALWAYS BE FILED IN CANADA
Q. I am trying to understand more clearly the difference of filing a spousal sponsorship application for my spouse in Canada vs. outside of Canada. To give you some background, I am a Canadian Citizen and I have never sponsored anyone before. I met a woman about two years ago at a community centre and we recently married. I was not involved in her early dealings with immigration but from the information she provided, it seems that she came to Canada to work in Montreal and her work permit expired. She tried to apply for residence but the application went no where. She was required to leave the country and attend an interview but never showed up and moved to Toronto. I have read that a person who is illegal in Canada can still apply for residence if they marry a Canadian. Is that still correct? I also heard that it is faster to file the application from outside of Canada. What would you recommend?
A. I usually recommend options to a client once it is clear that they are two or more options. I do not believe you have any options in this case. From the information provided, it seems that your wife has already been contacted to leave the country. The fact that she did not show up is a separate and serious matter but for the purposes of answering your question, I do not see how she can be processed in Canada. Yes, you are correct. Applicants who no longer have status in Canada can still file a spousal application inside of Canada but you need to read the fine print. That is, if the applicant has already been called for removal or what is called “removal ready” then the inland spousal sponsorship is no longer an option.
As well, if you file the application from abroad it does not necessarily mean that she must leave the country. I would definitely look to see if there are any enforcement proceedings against her and then file an overseas application which gives you an automatic right to an appeal (if refused) and is generally a faster process.
Q. I want to sponsor my niece to come to Canada to look after my mother. I have very little knowledge about these types of applications and want to make sure that the application will be successful before I even start. Under what circumstances can this application fail?
A. The Canadian Embassy in Manila is the office responsible for determining if the applicant (your niece) is eligible for work permit. There are several reasons for applications of this type to be refused. The most popular are:
No Genuine Need to hire a full time caregiver – this is becoming a popular ground for refusal. The employer must have an actual and genuine need for a full time caregiver. If the employer does not need a full time caregiver to care for child care or elderly, the application may be refused. Sometimes, the embassy will not approve applications for school aged children since they are in school all day and the caregiver is not working full time.
Unsuitable Accommodations – the employer must ensure that there is ample room in their house to provide a private locked room for the caregiver. If the employer has 3 children and only three rooms in the home, the embassy will assume that there is no room given the family configuration and refuse the application.
Financial Inability of Employer – the employer must provide tax documents clearing indicating they have sufficient income to care for their own family + pay the wages of the worker. The level used is the low income cut off chart plus about $20,000 in wages for the worker.
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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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