Inside Canada Spousal Sponsorship When there are Children Outside Canada

I recently met with an individual who was given erroneous advice.  She was told that she should not file an “Application for Permanent Residence from within Canada – Spouse or Common-law Partner in Canada” (“Inside Canada Sponsorship“) because she had dependent children living overseas, and that if she did the Inside Canada Sponsorship her children would not be able to accompany her to Canada.

This is not the case.

Section 5.11 of Citizenship and Immigration Canada’s Inland Processing Manual 8 – Spouse or Common Law Partner in Canada states that:

For dependent children living outside Canada, the [Case Processing Centre – Vegreville] will forward a copy of the permanent residence application listing the dependent children and their relevant contact information to the responsible visa office for verification of the relationship, once the sponsor and applicant have been assessed and approved against eligibility requirements.

The visa office will determine admissibility of dependent children outside Canada, conduct interviews if necessary and advise the CPC-V of the outcome by updating the electronic record.  The CPC then informs the CIC [office] responsible for the applicant’s place of residence that permanent residence may be granted.  Once the CIC [office] has granted permanent residence to the principal applicant, it will notify the visa office, which will issue permanent resident visas to the overseas dependent children who are seeking permanent residence.

There are many differences between the Inside Canada Sponsorship and the outside Canada sponsorship.  Whether children outside of Canada can accompany the principal applicant in the same application is not one of them.


Changes to the Foreign Worker Program, Parent Sponsorship Program, and the Age of Dependency

On April 29, 2013, the Government of Canada announced that numerous changes were being made to the Temporary Foreign Worker Program, particularly the Labour Market Opinion (“LMO“) program.  While most of the changes will be phased in, some of them, including the suspension of the Accelerated Labour Market Opinion (“ALMO“) program, took effect immediately.

Just over one week later, on May 10, 2013, Citizenship and Immigration Canada (“CIC“) announced that the Parent and Grandparent Sponsorship Program (the “P&G Sponsorship Program“) would reopen in 2014 and accept 5,000 applications in its first year.  Several changes have been made to the program.

Finally, CIC also announced that it would soon reduce the age of dependency for all immigration programs from 22 to 18. In other words, only children under the age of 19 will be able to accompany their parents when they immigrate to Canada.

Changes to the Temporary Foreign Worker Program

There are numerous, significant changes being made to the Temporary Foreign Worker Program.  All of the changes appear aimed at making LMOs more difficult to obtain.  

  • Effective April 29, 2013, the ALMO has been temporarily suspended pending review.
  • Effective April 29, 2013, Human Resources and Skills Development Canada (“Service Canada”) ended the Variation to the Prevailing Wage Rate.  In the past, employers had the flexibility to pay temporary foreign worker wages up to 15% below the prevailing wage for a higher-skilled occupation, and 5% below the prevailing wage for a lower-skilled occupation, if the lower wage was the same as that being paid to their Canadian employees in the same job and in the same location.  Accordingly, as the Variation of the Prevailing Wage Rate has been cancelled, to obtain a LMO employers must pay their foreign workers the prevailing wage rate regardless of what their Canadian employees make.
  • The Government of Canada has introduced legislation which would increase its ability to suspend and revoke work permits and LMOs if it feels they are being misused. Service Canada will be able to suspend, revoke or refuse to process a request for an LMO if, for example, new information becomes available indicating that the entry of a temporary foreign worker would have a negative impact on the labour market, or if it is determined that the LMO was fraudulently obtained.  Once a LMO is revoked, then CIC will have the ability to revoke work permits issued pursuant to it.
  • Questions are being added to LMO application forms to ensure that the program is not being used to facilitate the outsourcing of Canadian jobs.
  • Employers who employ foreign workers will soon be required to have a plan in place to transition to a Canadian workforce over time. The requirements of the transition plan will vary depending on whether the employer is seeking to fill a lower- or higher-skilled position, the type and size of the industry and the regional unemployment rate, as well as the particular job being advertised. The employer will have to submit the transition plan to Service Canada as part of its LMO application.  A review of the employer’s progress against the transition plan will occur if the employer applies for a future LMO.
  • The Government of Canada will be increasing the cost of work permit applications, and introducing fees to LMO applications.  The exact amounts have not yet been announced.
  • Employers will be prohibited from identifying a language other than English or French as being a job requirement during recruitment.  Exemptions will only be given in specialized cases where a foreign language is an essential job requirement. In these cases, the onus will be on the employer to explain why a foreign language is a requirement of the job.  Although this change has not yet officially taken affect, the Service Canada Job Bank is reportedly refusing to post job advertisements which contain a language other than English or French.

Changes to the P&G Sponsorship Program

In 2011, CIC suspended the P&G Sponsorship Program.  It will reopen in 2014, and CIC will accept 5,000 applications to the program that year.

People who were previously considering sponsoring their parents or grandparents to immigrate to Canada should be aware of the following changes to the program:

  • The length of the sponsorship undertaking is being increased from 10 years to 20 years.  This means that sponsors will be responsible for repaying any provincial social assistance benefits paid to their parents or grandparents for the first 20 years after they immigrate to Canada.

  • The minimum necessary income for sponsoring parents and grandparents is being increased by 30%.  The amount of income a sponsor will require will depend on the number of persons who the sponsor will be supporting.  For example, a sponsor with a spouse and two children who intends on sponsoring two parents will be required to earn approximately $72,000.

  • Prospective sponsors will need to show that they have met the income requirement for the three years prior to submitting the sponsorship application, rather than one.

  • Evidence of income will be confined to documents issued by the Canada Revenue Agency.

Reducing the Age of Accompanying Dependants

Currently, the children of immigrants may immigrate to Canada with their parents if they are under the age of 22.  As well, young adults over the age of 22 who have been continuous full-time students since turning 22 may also accompany their parents.

This will soon change.  The maximum age of dependants will be reduced to 18 years of age for all immigration programs.  There will be no exception for full-time post-secondary students.  The only exception will be for those who are financially dependent on their parents due to a mental or physical disability.

More information about the changes to the Temporary Foreign Worker Program can be found here.

More information about the changes to the P&G Sponsorship Program can be found here.

More information about the changes to the age of dependency can be found here.


Spousal Sponsorships where the Sponsor Does not Live in Canada

Section 133(2) of the Immigration and Refugee Protection Regulations (the “Regulations”) provides that:

A sponsor who is a Canadian citizen and does not reside in Canada may sponsor a foreign national who makes [an application to sponsor a member of the Family Class] and is the sponsor’s spouse, common-law partner, conjugal partner or dependent child who has no dependent children, if the sponsor will reside in Canada when the foreign national becomes a permanent resident.

(Emphasis Added)

I have dealt with this issue on numerous occasions, and, depending on the visa post, Citizenship and Immigration Canada (“CIC“) may scrutinize in some detail the sponsor’s intention to actually reside in Canada with their spouse, or to simply get the principal applicant permanent resident status without actually immigrating to Canada.

The Embassy of Canada in the United Arab Emirates asks applicants to complete a Residency Questionnaire for their sponsors if they reside outside of Canada, and I have reproduced the questions below.  These questions can serve as a useful guide to anyone submitting a family class application where s. 133(2) of the Regulations applies.

  1. Is your sponsor currently a Canadian citizen or a Permanent Resident? 
  2. Is your sponsor currently in Canada?
    1. If yes, then how long has the sponsor been physically residing in Canada?
    2. If yes, then when did you last see your sponsor?
    3. If no, then how long has the sponsor been living outside of Canada?
  3. If your sponsor is not living in Canada, then please explain why and when he/she intends to return to reside in Canada once your visa is issued.  Please provide as many details as possible.
  4. What preparations have you and/or your sponsor made for your move to Canada?  Please provide documentary proof if possible.
  5. If you have school aged children, have you made enquiries with the local school board? If yes, which school? If no, why not?
  6. Has the school, where your school-aged child(ren) is currently attending issued a transfer certificate?
  7. Will you and your spouse be both moving to Canada and reside together permanently?
  8. Will you, the principal applicant, cancel the Gulf residence visa? Why or why not?
  9. Does your sponsor own any of the following assets in Canada? Bank account, apartment, house, business, other..
  10. Has your sponsor filed the most recent annual tax filing with the Canada Revenue Agency as a factual resident of Canada?
  11. Is your sponsor currently employed in a permanent full-time position in Canada? Please provide details if yes.

The final two questions retain to changes in circumstance post-submitting the application, and I have not reproduced them here because my hope is that by providing answers and context to the eleven questions above, you will avoid delays in processing by having status update requests.


Video Marriages

Tom Godfrey of the Toronto Sun recently published an articled titled “Married by video chat? Come to Canada!”  The article has generated alot of attention.  However, people who are criticizing Citizenship and Immigration Canada recognizing telephone (and video) marriage are missing the crucial point that it is not how someone gets married that matters, but rather the marriage is genuine.

The first half of the article states (the entire article can be read here):

Marriages conducted by telephone or webcam that unite Muslim women in Canada with husbands abroad make up a significant number of the immigration sponsorship cases in Pakistan, says a top official.

“Approximately 40% of the caseload involves proxy marriages, some of which were conducted over the phone via internet or webcam,” said Pat O’Brien, an immigration program manager at the High Commission of Canada in Islamabad.

The embassy’s territory includes Pakistan and Afghanistan, two of the most dangerous countries in the world, according to an Environmental Overview Template Islamabad report compiled by O’Brien for Ottawa. It was obtained under an Access of Information request by lawyer Richard Kurland.

The template said many applicants seeking visas for Canada take part in arranged marriages. In many cases, the brides are in Canada while their husbands reside in Pakistan or Afghanistan.

The men are sponsored to Canada by their wives. The cases “involve arranged marriages amongst Muslims, the vast majority of which take place between first cousins,” O’Brien told Ottawa in March 2012.

She said most of the couples getting hitched have never met. They are married by an imam on the phone or webcam with the couples being in different countries.

Although the article does not say how many “video chat marriages” Citizenship and Immigration Canada’s Islamabad mission approved, Citizenship and Immigration Canada data reveals that 87% of spousal-sponsorship applications processed in Islamabad in 2011 were approved.  This suggests that the situation is not as bad as the information contained in the Access to Information request suggests and in the Toronto Sun article imply.

(Alternatively, it suggests that Pat O’Brien’s mission is approving many spousal-sponsorship applications that they know are sham, which I can’t fathom as being the case.)

Many commentators on social media seem stunned that Citizenship and Immigration Canada recognizes proxy marriages.  Before commenting on this policy, it is important to note that “yes,” Citizenship and Immigration Canada recognizes proxy and telephone marriages.

The Citizenship and Immigration Canada manual states:

Type of Marriage Information
Arranged marriage Family members or a marriage broker usually arrange such marriages. The participants may not have met before the marriage, but will be familiar with each other’s background. Such marriages are recognised for immigration purposes because they are legally recognized where they occur but must also be legal under federal Canadian law.
Proxy marriage At a proxy marriage one of the participants is not present and has named a proxy to represent him or her. If the law of the country in which the marriage ceremony was performed permits proxy marriages, they are legal marriages for immigration purposes, provided they are legal under Canadian federal law.
Telephone marriage A marriage in which one of the participants is not physically present and is not represented by a proxy but participates directly by telephone is a legal marriage if it is legally recognized according to the law of the place where it occurred. This is a legal marriage for immigration purposes provided it meets the Canadian federal requirements, with respect to consanguinity and
polygamy/bigamy.
Tribal marriage Tribal marriages, or customary marriages carried out according to tribal custom, are valid for immigration purposes if they are legally recognized where they occur. Tribal marriages are normally unrecorded.

That Citizenship and Immigration Canada would recognize such marriages should not be surprising.  It does not matter how someone was married, but rather whether the married couple have demonstrated that their conjugal relationship is genuine, and that it was not entered into for immigration purposes.  I once represented an individual who participated in an unrecorded customary marriage in Zimbabwe. The lack of documentary wedding evidence was a huge hurdle in meeting our obligation to show that there was a genuine marriage and that immigration was not the primary motivator.  We had to include pages upon pages of reference letters, photographs, and other supporting documents to show that this was indeed a legitimate marriage.

I imagine that most of the Pakistani applicants above did the same.

 


Immigration Appeal Division Must Address Bona Fides Before H&C

The Federal Court has confirmed that s. 65 of the Immigration and Refugee Protection Act requires that the Immigration Appeal Division determine whether an applicant is a member of the Family Class before considering humanitarian & compassionate considerations (“H&Cs“).

Accordingly, people appearing before the Immigration Appeal Division in a Family Class appeal should be prepared to prove that the applicant is a member of the family class before arguing H&Cs.  This is the case even if the visa officer did not make a determination, or made a negative determination, regarding membership in the Family Class.

For example, if a visa officer rejects a spousal-sponsorship application on the basis of criminality, then at the Immigration Appeal Division the appellant must be prepared to demonstrate bona fides of the relationship prior to analyzing the inadmissibility, and any H&Cs to overcome it.

 


Spousal Sponsorship Bar on Violent Spouses

In April the Gazette announced that a sponsorship bar would soon come into effect prohibiting individuals that have been convicted of certain offenses from sponsoring family members.  One of the offenses that would result in a bar was violence against someone that the wannabe sponsor had dated, which seemed a little vague.  Now that the sponsorship bar has come into effect, and Citizenship and Immigration Canada has released a detailed Operational Bulletin on the matter, lets see if the if the new rule is a little clearer.

The Operational Bulletin starts by noting the gap in the law exposed by the Brar (2008 FC 1285) decision, where the Federal Court found that an individual who had murdered his brother’s wife was allowed to sponsor his own wife, as the Immigration and Refugee Protection Regulations did not specifically bar an individual who had killed a sister-in-law from sponsoring another family member.

Under the new Regulations, subject to certain exceptions, anyone convicted of an indictable offense involving the use of violence punishable by a maximum term of imprisonment of at least 10 years or an attempt to commit such an offense will be barred from sponsorship.

As well, subject to certain exceptions, anyone convicted of an offense that results in bodily harm to any of the following persons, or an attempt to commit such an offense against any of the following persons, will be barred from sponsorship:

  • a) a current or former family member of the sponsor,
  • b) a relative of the sponsor, as well as a current or former family member of that relative,
  • c) a relative of the family member of the sponsor, or a current or former family member of that relative,
  • d) a current or former conjugal partner of the sponsor,
  • e) a current or former family member of a family member or conjugal partner of the sponsor,
  • f) a relative of the conjugal partner of the sponsor, or a current or former family member of that relative,
  • g) a child under the current or former care and control of the sponsor, their current or former family member or conjugal partner,
  • h) a child under the current or former care and control of a relative of the sponsor or a current or former family member of that relative, or
  • i) someone the sponsor is dating or has dated, whether or not they have lived together, or a family member of that person.

CIC has produced the following helpful charts to explain what the above means.

Continue reading “Spousal Sponsorship Bar on Violent Spouses”


Clearing the Parental Backlog

Flickr photo by Horrgakx

It looks like Citizenship and Immigration Canada is serious about clearing that parental and grandparent sponsorship backlog.  On November 7, 2011, CIC released Operational Bulletin 353 – Change in Procedures for Processing Family Class Parent and Grandparent Applications.

If you have an application to sponsor a parent or grandparent in processing take note.  Starting mid-November, CIC will begin sending out letters to sponsors with the oldest applications in processing requesting the submission of additional documentation and forms.

Applicants will be given 90 days to comply with the request, and informed that if they do not submit the additional documentation and forms within the 90 days, then their application will be closed.

Furthermore, if the additional forms and documents are incomplete, then applicants will only have 30 days to return their application with the missing documents, or the application will be closed.

Considering that until last week people with sponsorship applications in processing thought that it would be years until their was movement on their file these deadlines are pretty strict.  So take note and get ready!  It would be a change if the parent and grandparent sponsorship application backlog was reduced simply through applications being rejected for failure to comply with deadlines.


“Pause” on New Parental Sponsorship Applications

On November 4, 2011, the federal government introduced its plan for reducing the backlog in parent and grandparent sponsorship applications.  With more than 165,000 applications in the queue, and a wait time approaching a decade, it was clear that something had to be done.

The government’s plan involves numerous phases:

One – Increase by over 60 percent the number of sponsored parents and grandparents Canada will admit next year, from nearly 15,500 in 2010 to 25,000 in 2012.

Two – Introduce a new “Parent and Grandparent Super Visa,”which will be valid for up to 10 years. The multiple-entry visa will allow an applicant to remain in Canada for up to 24 months at a time without the need for renewal of their status. The Parent and Grandparent Super Visa will come into effect on December 1, 2011. Parent and Grandparent Super Visa applicants will be required to obtain private Canadian health-care insurance for their stay in Canada.

Three  The government will consult stakeholders on how to redesign the parents and grandparents program to ensure that it is sustainable in the future.

Four – There will be a temporary pause of up to 24 months on the acceptance of new sponsorship applications for parents and grandparents. The pause comes into effect on November 5, 2011.

Thoughts?

For those who have never thought about the issue before, the following points are worth considering:

  • Is it fair to the Canadian taxpayer to pay for the costs of healthcare of individuals who have paid less into the system than those who have lived here all their lives?  The statistics are clear that the elderly consume a disproportionate share of health care dollars compared to younger individuals.
  • Should naturalized Canadians, who pay taxes, and often earn above what the average Canadian makes, not have the choice to take care of their parents just like Canadian-born Canadians can?
  • In terms of the economic arguments, what about the fact that for immigrants with children the presence of their parents and/or grandparents can allow those immigrants to work?
  • Would potential immigrants still choose Canada if they know that they cannot sponsor their parents to move here permanently?
So what do you think?  If you were designing a new parental / grandparent sponsorship program what would it look like?