Implied Status with Open Work Permit/Spousal Sponsorship PR Application

[Underhill]

The link above states "If they have done so, their period of authorized stay as a temporary resident is extended by law until a decision is made [R183(5)]." The link therein is to the law (in French for some reason, but it's numbered, so you can find.



What did the superintendent say when they intervened? If you didn't hear, it's possible they were simply not embarrassing the other officer. Frankly the simple answer is quite possibly that the other officer did not know; note also the language of the document linked - it's now called 'maintained status'.

That said, the details of the rest of that policy are rather complex so I'm not comfortable saying exactly whether it applies in a specific case. (I'm just not an expert)



That link and the relevant sections of the law should be what you'd need.

R183(5) refers to automatic extension to someone who's applied for a Visitor Record. It does not cover a Spousal Sponsorship/First-Time OWP applicant. While it's not clearly defined by Canadian law (at least as far as I've been able to discover), a SS/First-Time OWP applicant's visitor/temporary resident status is only defined by whatever visitor visa you get when crossing into Canada. As a US citizen I get 6 months. My first-time OWP application provides me no additional status whatsoever.

My US residence is in a very unique spot in relation to Canada, and crossing the border multiple times a day year-round (pandemic notwithstanding) is the norm there. And while technically I'm only allowed 6 months per year in Canada, all of the long-time CBSA officers recognize that this is impossible for residents of this unique US location, and they use their discretion to ignore the 'law' while we residents cross the border almost daily. The Superintendent who intervened is well known to me, and has waved me through this crossing hundreds of times over the last few years. The CBSA agent who was getting technical on me was unknown to me. Pretty sure the Superintendent reminded the agent he had broad discretionary power, and that letting me cross despite technically overstaying my stay was within his purview. After their sidebar chat he gave me a stern warning and suggested I apply for a Visitor Record to extend my status.

Interestingly, when I try to apply for that extension, it requires me to log into my gckey account and takes me to a questionnaire. When I answer all the questions it indicates I should apply for Spousal Sponsorship instead of a Visitor Record and dead-ends me et a link to begin the PR application process. The only way I can apply for a Visitor Record is to lie on the questionnaire and indicate that I intend t stay only temporarily.

I appreciate the discourse on this subject.

 

[Underhill]

That’s what my lawyer told me, and he is known for being one of the best in the city! So I trust him!

Your lawyer may well be right, but I guess the issue is the ambiguity in Canadian law on the subject. Combining this with the broad discretionary powers of individual CBSA officers is a recipe for potential enormous hassle. So, the CBSA officer says you've overstayed your visit and kicks you out of the country - your lawyer says the CBSA officer is plain wrong and files a complaint. Two years and $20k in legal fees later the CBSA decision is overturned and you're allowed back in.

Oi vey.

 

[danwuff]

Not at all a complaint - well, my snarky comment regarding bureaucracy wasn't aimed at Canada per se, just governmental bureaucracy in general. So, there's that.

As far as implied status being automatically granted under the conditions in my first post, if you're saying it's law, where can I find that law?

I don't mean to challenge you - I genuinely hope you're right - it's just that on my last (land) border crossing in late February this year a CBSA officer asked me how long I'd been in Canada prior to this same-day turn around. I told him just over 6 months, but that I had a current spousal sponsorship/OWP application in process, and that I understood the OWP gave me implied status during that previous 6 months. He said it absolutely did not, and that I had overstayed my 6 month visitor status (I'm a US citizen, so no passport stamp or formal visa document required), and that it was well within his authority to A) Jail me, or B) kick me out of Canada right then and there. Fortunately a Superintendent intervened and smoothed things over and they let me in.

Would have been handy to have a link or printout of whatever law/ordinance/rule that grants implied status to first time Spousal Sponsorship/OWP applicants to show him.

I know this is late, sharing it for whoever still needs it. I'm in the same situation as you(current spousal sponsorship/OWP application in process and staying over 180 day), planning a visit to the US. I was searching if I need to apply for an extension and finally found this:

In situations where an applicant who has visitor status submits an application for permanent residence to a case processing centre in Canada and, at the same time, submits an application for a work permit [pursuant to paragraph R207(b)], the visitor may be considered to have requested an extension of their temporary resident status [in accordance with subsection R183(5)]. They are considered to have implied status as a visitor, until a decision is made on their work permit application.
https://www.canada.ca/en/immigration-refugees-citizenship/corporate/publications-manuals/operational-bulletins-manuals/temporary-residents/visitors/inland-applications-permanent-residence-status-extension.html

Now I have some proof if the CBSA officer challenges me...

 

[Ponga]

I know this is late, sharing it for whoever still needs it. I'm in the same situation as you(current spousal sponsorship/OWP application in process and staying over 180 day), planning a visit to the US. I was searching if I need to apply for an extension and finally found this:

In situations where an applicant who has visitor status submits an application for permanent residence to a case processing centre in Canada and, at the same time, submits an application for a work permit [pursuant to paragraph R207(b)], the visitor may be considered to have requested an extension of their temporary resident status [in accordance with subsection R183(5)]. They are considered to have implied status as a visitor, until a decision is made on their work permit application.
https://www.canada.ca/en/immigration-refugees-citizenship/corporate/publications-manuals/operational-bulletins-manuals/temporary-residents/visitors/inland-applications-permanent-residence-status-extension.html

Now I have some proof if the CBSA officer challenges me...

This only works IF...on the day that you submit the application you still have legal visitor status. But...regarding the information above, you missed something:
Date modified: 2019-06-04



About a year ago (+/-) IRCC changed the policy for Inland (SCPLC) applicants regarding the OWP. Now, the SCPLC applicant must wait until they receive an official AOR from IRCC, before being eligible to then submit the OWP, but again...only if they still have legal status when submitting the OWP.

If YOU are out of status, you will not be eligible to submit the OWP until you receive AIP;Approval in Principle.

Lastly, what do you mean "...if the CBSA officer challenges me."? Do you understand that IRCC and CBSA are completely separate agencies? You encounter CBSA when you enter Canada. You deal with IRCC when applying for something that allows to to be in Canada, legally. Big difference.

A person without status in Canada should not initiate contact with CBSA, but should not evade either.

 

[Tarikla]

Also, beware of leaving Canada at all while your Inland sponsorship application is in progress. CBSA agents can deny your reentry even with an OWP application in progress (and even with an actual OWP) if they judge you're not gonna leave Canada once your status expire. Especially at land borders between the US and Canada, every reentry is a risk until you're actually a PR.

If you're denied reentry for any reason, your Inland sponsorship will be considered abandoned, and you'll have to submit an Outland application and do the whole process all over again.

 

[scylla]

I know this is late, sharing it for whoever still needs it. I'm in the same situation as you(current spousal sponsorship/OWP application in process and staying over 180 day), planning a visit to the US. I was searching if I need to apply for an extension and finally found this:

In situations where an applicant who has visitor status submits an application for permanent residence to a case processing centre in Canada and, at the same time, submits an application for a work permit [pursuant to paragraph R207(b)], the visitor may be considered to have requested an extension of their temporary resident status [in accordance with subsection R183(5)]. They are considered to have implied status as a visitor, until a decision is made on their work permit application.
https://www.canada.ca/en/immigration-refugees-citizenship/corporate/publications-manuals/operational-bulletins-manuals/temporary-residents/visitors/inland-applications-permanent-residence-status-extension.html

Now I have some proof if the CBSA officer challenges me...

Just as an FYI, this doesn't guarantee that you will be readmitted to Canada. Almost certainly you will be of course. But that's never a guarantee if you leave.

 

[danwuff]

This only works IF...on the day that you submit the application you still have legal visitor status. But...regarding the information above, you missed something:
Date modified: 2019-06-04



About a year ago (+/-) IRCC changed the policy for Inland (SCPLC) applicants regarding the OWP. Now, the SCPLC applicant must wait until they receive an official AOR from IRCC, before being eligible to then submit the OWP, but again...only if they still have legal status when submitting the OWP.

If YOU are out of status, you will not be eligible to submit the OWP until you receive AIP;Approval in Principle.

Lastly, what do you mean "...if the CBSA officer challenges me."? Do you understand that IRCC and CBSA are completely separate agencies? You encounter CBSA when you enter Canada. You deal with IRCC when applying for something that allows to to be in Canada, legally. Big difference.

A person without status in Canada should not initiate contact with CBSA, but should not evade either.

Yes, of course, you need to have legal status when submitting the OWP in order to have the implied status...

I also understand that it's up to the CBSA officer to decide my admission when I come back. The challenge was referring to underhill's experience: "my last (land) border crossing in late February this year a CBSA officer asked me how long I'd been in Canada prior to this same-day turn around. I told him just over 6 months, but that I had a current spousal sponsorship/OWP application in process, and that I understood the OWP gave me implied status during that previous 6 months. He said it absolutely did not, and that I had overstayed my 6 month visitor status (I'm a US citizen, so no passport stamp or formal visa document required), and that it was well within his authority to A) Jail me, or B) kick me out of Canada right then and there. Fortunately a Superintendent intervened and smoothed things over and they let me in."

 

[Ponga]

Yes, of course, you need to have legal status when submitting the OWP in order to have the implied status...

I also understand that it's up to the CBSA officer to decide my admission when I come back. The challenge was referring to underhill's experience: "my last (land) border crossing in late February this year a CBSA officer asked me how long I'd been in Canada prior to this same-day turn around. I told him just over 6 months, but that I had a current spousal sponsorship/OWP application in process, and that I understood the OWP gave me implied status during that previous 6 months. He said it absolutely did not, and that I had overstayed my 6 month visitor status (I'm a US citizen, so no passport stamp or formal visa document required), and that it was well within his authority to A) Jail me, or B) kick me out of Canada right then and there. Fortunately a Superintendent intervened and smoothed things over and they let me in."

But therein lies the issue. Did you submit the OWP AFTER receiving your AOR? If you did not, and sent it with the Inland application, you would not have had 'Maintained Status (formerly known as Implied Status) because of the change mentioned by IRCC. This would mean had you not left and [successfully] returned, you would be without status until receiving the OWP and/or the PR.

 

[danwuff]

But therein lies the issue. Did you submit the OWP AFTER receiving your AOR? If you did not, and sent it with the Inland application, you would not have had 'Maintained Status (formerly known as Implied Status) because of the change mentioned by IRCC. This would mean had you not left and [successfully] returned, you would be without status until receiving the OWP and/or the PR.

Submitted the OWP after receiving the AOR...Finally, after 5 months, just got the OWP before the US trip.