The Inside Canada vs. Outside Canada Sponsorship Process

One of the quirkier features of Canadian immigration law is the distinction between what is generally referred to as the “Inside-Canada Sponsorship” process and the “Outside-Canada Sponsorship” process.  The biggest myth is that if a couple is residing in Canada then they must use the “Inside-Canada Sponsorship” process.  This is not true.  However, each program contains advantages and disadvantages vis-a-vis the other, and I have provided a list of the key features and requirements of each program below.

 

Inside-Canada Process

Outside-Canada Process

The spouse/common-law partner must be in a genuine, conjugal relationship that was not entered into for the primary purpose of acquiring an immigration benefit. The spouse/common-law partner must be in a genuine, conjugal relationship that was not entered into for the primary purpose of acquiring an immigration benefit.
The spouse/common-law partner must reside together in Canada. The spouse/common-law partner do not have to reside together in Canada.  As well, once a common-law relationship is established, periods of separation will not change their common-law status if there is a short separation that does not sever the common-law partnership.
The applicant must live with the spouse/common-law partner inside Canada during the duration of processing. The applicant can live with the spouse/common-law partner inside Canada during the duration of processing, but does not have to.
The immigration paperwork is sent to a processing center inside Canada, and remains in Canada. The immigration paperwork is sent to a processing center inside Canada, and it then may be transferred to a visa post outside of Canada.
If the applicant has valid temporary resident status in Canada, and submits an application to extend that status inside Canada with the permanent residence application, then the applicant will have implied status during the processing of the permanent residence application, provided he/she does not leave Canada. If the applicant has valid temporary resident status in Canada, he/she must maintain his/her status. The process is separate from the permanent residence application, and there is no implied status for the duration of processing.
Citizenship and Immigration Canada will process the application even if the applicant does not have valid temporary resident status in Canada.  If an individual has an application in processing, and is detained by the Canada Border Services Agency for being without status, then the applicant will generally benefit from a 60 day deferral period, and Citizenship and Immigration Canada will endeavour to process the permanent residence application within 60 days. Citizenship and Immigration Canada will not process the application if the applicant does not have valid temporary resident status in Canada.
The current processing time is 27 months.  At the 17th month mark, the Applicant will receive “first-stage approval” if it is determined that the spouse/common-law partnership is bona fide, and the applicant will be entitled to an open work permit. Processing times vary depending on the visa post, and range from 10 months to 38 months.   There is no first-stage approval for the issuance of open work permits.
There is currently a pilot project in place to provide work permits to applicants who have valid temporary resident status after 4 months of processing. The permanent residence application is completely separate from any ability to work in Canada.
There is no appeal right to the Immigration Appeal Division.  The only recourse is an application to Federal Court for judicial review. There is a general appeal right to the Immigration Appeal Division, except for refusals based on serious criminality, terrorism, national security, espionage, and similar serious matters.  The only recourse in those situations is an application to Federal Court for judicial review.
If the applicant leaves Canada and is for whatever reason denied re-entry by the Canada Border Services Agency, then the permanent residence application will be refused, and the applicant must start over from outside Canada. If the applicant leaves Canada and is for whatever reason denied re-entry by the Canada Border Services Agency, this will generally not impact the permanent residence application.

Bridging Open Work Permits

Citizenship and Immigration Canada’s (“CIC“) International Mobility Program containing an bridging open work permit program for temporary foreign workers currently working in Canada who have submitted permanent residence applications under the Federal Skilled Worker Program (“FSWP“), the Canadian Experience Class (“CEC“), the Provincial Nominee Program (“PNP“), or the Federal Skilled Trades Program (“FSTP“).

Bridging open work permits are a huge and positive development for Canadian employers with employees who have filed permanent residence applications under one of Canada’s economic programs.  CIC’s introduction of bridging work permits removes a significant issue which many temporary foreign workers previously encountered, namely that they were unable to extend their work permits during CIC’s processing of their permanent resident applications without their employers first having to obtain positive Labour Market Impact Assessments, an uncertain process which often takes months.

Eligibility

Temporary foreign workers currently working in Canada are eligible to apply for a bridging work permit if they:

  • are a foreign national in Canada;
  • have valid status on a work permit that is due to expire within 4 months;
  • received a positive eligibility decision on their permanent residence application under either the FSWP, the CEC, the PNP, or the FSTP; and
  • they have applied for an open work permit.

The following individuals are not eligible for open bridging work permits:

  • foreign nationals in Canada working in Canada who are work permit exempt;
  • foreign nationals who have let their status expire and must apply for restoration in order to return to temporary resident status;
  • foreign nationals whose work permits are valid for longer than four months and/or who already have a new Labour Market Impact Assessment that can be used as the basis for a new work permit application;
  • foreign nationals applying for a bridging work permit at the port of entry;
  • spouse and dependants of the principal permanent resident applicant; and
  • provincial nominees who have not submitted a copy of their nomination letter with the application for a bridging work permit, or whose nomination letter specifically indicates employment restrictions.

That last point is an important one for provincial nominees.  Provincial nominees whose nomination certificates stipulate conditions or restrictions indicating that they must work for a specific employer, or work under a specific NOC code, will not be eligible for bridging open work permits.

For the purpose of determining whether a positive eligibility decision has been made, the following must have occurred:

  • For FSWP applicants,  CIC must have sent a positive Final Determination of Eligibility Letter, or set the “Ministerial Instructions” status to “Met.”
  • For PNP applicants, the Central Intake Office must have sent the applicant an Acknowledgement of Receipt Letter, or changed the “Eligibility EC-QC/PNP” status to “Passed.”
  • For CEC applicants, the Central Intake Office must have sent the applicant an Acknowledgement of Receipt Letter, or changed the “Eligibility CEC” decision to “Passed.”
  • For FSTP applicants, the Central Intake Office must have sent the applicant an Acknowledgement of Receipt Letter.

Although no guidelines have been posted regarding Express Entry, CIC has indicated on numerous occasions that the Express Entry “Acknowledgement of Receipt” which says that CIC is performing a completeness check does not make an individual eligible for an open bridging work permit.  Rather, it is when CIC’s Global Case Management System is updated to indicate that the Express Entry application is complete.

Applicants will be issued open work permits valid for a duration of one year.  They can be renewed on a case-by-case basis if the permanent residence application has not been processed within that time.

FSWP, CEC, and FSTP applicants’ work permits will be valid for work in any province.  PNP applicants’ bridging work permits will be limited to the applicant’s nominating province.

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Non-Accompanying Dependants and Medical Exams

One of the more frustrating aspects for prospective immigrants is Citizenship and Immigration Canada’s (“CIC”) general requirement that they have their non-accompanying dependants (spouses and children) undergo medical and criminal examination.  The task can be taunting for those who do not have full custody of their non-accompanying children.  However, CIC’s requirement is understandable in light of Canadian immigration legislation..

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Certified Question on Removal Orders for Permanent Resident Visa Holders at the Port of Entry

On March 17, 2015, Justice Montigny in Ismail v. Canada (Citizenship and Immigration), 2015 FC 338 (“Ismail“), certified the following question:

For the purposes of determining its jurisdiction to hear an appeal pursuant to subsection 63(2) of the IRPA, shall the validity of the permanent resident visa be assessed by the IAD at the time of arrival in Canada or at the time the exclusion order is made?

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Labour Market Impact Assessments – Recruitment Requirements

Employers wishing to apply for Labour Market Impact Assessments are required to conduct recruitment efforts to hire Canadian citizens and permanent residents.  The Ministry of Economic and Social Development (“ESDC” or “Service Canada“) is very stringent in its recruitment requirements, many of which are not publicly available.  In this blog post I seek to provide a comprehensive overview of Service Canada’s recruitment requirements, including providing a summary of the publicly available information on the Service Canada website, as well as summarizing and reproducing internal ESDC directives.

I would like to thank Jacobus Kriek, an immigration consultant with Matrixvisa Inc., for providing me copies of the internal Service Canada directives and e-mails that he has obtained.

Please note that what I have reproduced below should not be viewed as legal advice by ESDC or Service Canada.  The reproduction of the material below has not occurred with the affiliation of the Government of Canada, nor with the endorsement of the Government of Canada. As well, given the nature of relying on internal documents, some of the information may be out of date.

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Bill C-35, The Cracking Down on Crooked Counsultants Act

For years, Canadian politicians have been grappling with the issue of how to end untrained and unregulated people from providing immigration advice, also known as “ghost consulting.”  There appears to be a general consensus that tens of thousands of people each year are ripped off by ghost consultants.

The Government of Canada has launched numerous attempts at cracking down on ghost consultants, including, but not limited to, requiring licensing, creating the designated the Immigration Consultants of Canada Regulatory Council, and creating this video:

In June, 2010, the Conservative Government of Canada stepped up Canada’s efforts to regulate immigration consultants by introducing Bill C-35, also known as the Cracking Down on Crooked Consultants Act.

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