Sponsoring a person with no status is possible

Thursday, January 16th, 2014. Filed under: Legal Matters

by : Attorney Henry Moyal

MOYAL & MOYAL Canadian Immigration Lawyers (screenshot courtesy of www.moyal.com)

MOYAL & MOYAL Canadian Immigration Lawyers (screenshot courtesy of www.moyal.com)

Q. I’m a Canadian Citizen living in Canada and in a serious relationship with my high school sweetheart. He was married previously but is now living in California. He has no status in USA.

I want to sponsor him as my fiancé or spouse. I am not sure if it is better if he comes to Canada to marry or I should go there. If we marry in USA can the application be processed in Los Angeles?

A. There is no fiancé category any longer. If you are going to marry then it seems the more realistic approach is to marry in USA. I am saying this because it will be very unlikely that he will be granted a tourist visa to enter Canada and thus you cannot marry in Canada. Assuming you are both free to marry and all divorces are in place, then a wedding solemnized in the state of California is legal for immigration purposes. The place of processing will depend on his prior status in USA coupled with his current USA immigration status. For example, is he under removal proceedings?

You should also take into account the place you want the interview conducted in the event you are convoked for one. All these factors are relevant but once all put into place, it is very indeed possible to sponsor a spouse who is illegal in USA.

Q. I am in Canada with no status. I entered as a visitor three years ago and let my status expire because I entered using someone else’s passport. I am now married to a Canadian immigrant and I am pregnant. My friends tell me that they cannot deport me if I have a child born in Canada but I am still afraid to do anything for fear they will put me in jail and deport me. How do I get out of this mess?

A. Not surprisingly, advice from friends and unqualified persons is the wrong way to go. The information given to you is inaccurate once again. Having a child in Canada renders the child a Canadian citizen. The child cannot be deported but the mother certainly can. The good news is that you will not be put in jail unless there is a warrant for your arrest  – if so, at worse you will detained but spouse can post a bond. However, all that will not happen if you file the proper documentation and sponsorship. There are two caveats though: you must file the new forms under the new laws for illegal visitors and second you could be found ineligible depending on the circumstances surrounding the fraudulent passport. Obtain professional advice from someone who knows the laws and regulations – a lawyer not a consultant.

Q. I came to Canada as a live in caregiver in 2009. I was initially released upon arrival from my first employer. I did not obtain a new work permit until two years thereafter. I believe I now have the required 24 months of employment but my work permit is expiring soon. I will not have time to file my permanent resident application before the work permit. My passport is expiring too. Can I postpone my permanent residence application? Will I be able to extend my work permit?

A. I have a feeling you are going to face some bad news unless you clean up your situation and act fast – very fast. If you arrived in 2009 then you must accumulate 24 months within 4 years of arrival. If you do not then you could be out of the live in caregiver program. If you did then you must hold a valid work permit to obtain a permanent resident visa. It sounds like you will need a labor market opinion to extend the work permit if it is past the 4 years. As well, if your passport is expiring you should renew it immediately as the work permit cannot be issued past expiry of passport.

Q. I’m an occupational therapist and have several years of work experience. I want to apply as an immigrant but the problem is that my spouse is still in the Philippines and he is not so determined to immigrate. Can I just file the application myself and explain to immigration that my husband is not interested?

A. No, the world of immigration law does not work like that unfortunately. Providing a letter will not help. In fact, I am certain that they won’t even process the application. Your spouse is still a family member and must be declared on the application. He can be accompanying or non-accompanying. Whether he is immigrating or not – he still must pass medical and security checks and provide all relevant documents as a dependant.

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 email canada@moyal.com  or call toll free 1-888-847-2078.

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