American Couple, one HIV-positive, one HIV-negative, how to proceed?

[2toCA]

All:

We are an American male couple wishing to become Canadian Citizens. We will be applying under the skilled worker / professional immigration system. Score of 84 on the initial assessment. One of us is HIV-positive, the other is HIV-negative. We are worried about how to proceed. We realize that it's likely we will be rejected as a couple as one partner has HIV. Is it possible for me, the HIV-negative partner, to apply on my own, relocate, and then marry my partner, avoiding the HIV exception altogether? I have heard both that this is possible and that this is fraud since the Canadian Government considers us common law partners, even if the US doesn't legally recognize us as a couple.

Can anyone help us figure out the best way to proceed? Does anyone know an HIV-discordant couple who has successfully immigrated?

Thank you!!

 

[Cyrus]

Hello There:
This is my experience with couples where one is positive and one is negative. I have spoken to a lawyer in Vancouver, BC about this and this is what she told me. If one partner is positive then both will be denied an immigrant visa as it is likely that the second might be infected in the future, even possibly after immigrating to Canada. But they would want to avoid the burden on the medical system if they can help it, so they will be very careful right from the start. The only way (and this is not easy) you both can immigrate letting CIC know of both of you is if your partner who is hiv positive is currently NOT taking medications, or possibly has not taken any medications for hiv and a doctor can prove that. This can either be a CIC appointed doctor or possibly your own. It will be upto the discretion of the immigration officer. The lawyer further told me that you must declare your partners (wife, husband, common-law, fiance etc.) when you initially apply for your Skilled Worker Application. She said that in cases such as yours then, one partner ONLY applies as an independent-single applicant, immigrates to Canada and gets his/her PR. Then the other partner comes to Canada, as if he/she was visiting, they fall in love for the first time and after some 'dating' time, get married. However, be careful though. After you get married and then you sponsor your partner, make sure that you DO NOT mention that you were a couple before you immigrated to Canada. Make sure that you mention that you fell in love, after you moved to Canada - or your PR will be taken away for fraud and you will not be able to re-enter Canada atleast as a landed immigrant.
My suggestion - go alone, fall in love again in Canada, wait for one year and then marry your partner and bring him in! Sometimes, Canadian officials get crafty - do you both have a declaration of domestic partnership in the US where it is allowed like in San Francisco, or where you live? OR have you just been together without signing any domestic partner papers?

 

[2toCA]

Wow, Cyrus, thank you for so much good information. We had begun to wonder if anyone had any help for us! We have pretty much been discovering exactly what you found out from the Vancouver attorney.

We have NOT signed any domestic partnership papers as we live in a state, Oregon, where the good citizens felt it necessary to pass a referundum declaring us second-class citizens and denying us marriage rights. I guess in this case, that was helpful for us. We do have a joint bank account, are listed in our church directory as partners, share a cell phone account, own a car together -- I suppose that these things could be reasonably covered up without too much issue.

I hate having to go to these lengths, but I suppose there is no other option. Thank you for all of your thoughtful consideration. I wish there was a way I could get in touch with your attorney friend in Vancouver, but I don't want you to list her name on this public forum. I have made contact with a Vancouver immigration attorney, and perhaps I'll take this advice to him and discuss.

Thank you.

 

[Cyrus]

You are welcome. I hope everything works out for you. Now, remember, the joint bank account situation. You will be required to provide atleast 3 months of bank statements with your 'proof of settlement funds' and show that you have atleast I think around 11,000 CAD with you to take to Canada. You might want to open a new bank account ONLY in your name soon. Remember, everytime you open a new bank account now, the banks will actually run a hard inquiry on your credit report due to the patriot act. I am only mentioning this because that lowers your FICO score by a couple of points. You might also want to start collecting police clearance certificates from states you have lived in ever since you were 18. Cohen has a link to offices of the general attorney of the states on his website.
I donot remember the name of the attorney, but I will find out for you and send it to you in your inbox. Remember, that when you finally do go to Canada, you will have to give yourself time before you file for your partner. I have been told that one partner immigrating and very soon thereafter sponsoring the other raises a red flag. Give yourself several months before you sponsor your partner and show that you started dating or met after you immigrated. Also keep in mind - you will HAVE to list all the addresses you have lived at since you were 18 and this will onfile with CIC. When you file for your partner, he will also have to list all the addresses he has lived at since he was 18. Your addresses will match!! VERY IMPORTANT POINT FOR THE FUTURE TO REMEMBER!! My suggestion is, when your partner is ready to join you, make sure you list his parents/siblings address and none of your addresses match.

 

[calvin1998]

Does this also go for both partners when they are not HIV positive? We were planning to move together.

 

[2toCA]

No, this only applies if one of you will get rejected for some reason, such as a serious health condition. If you're both healthy, none of this applies.

I have to say, this news is discouraging enough that we are probably not going to even try. Our country keeps passing laws to deny us any legal rights, and we can't move to a country that does allow us those legal rights because of a chronic health concern. However, this is proving difficult enough that we're not going to chance it. There's no way to completely disentangle our lives. There are tax returns with addresses listed on them going back five years -- there's no way to cover our tracks as a couple completely. It won't work.

Maybe we'll try France or the UK.

Thanks everyone.

 

[Cyrus]

Hello:
Please don't give up hope for the only reason that when you sponsor your lover, he might not have to show his income tax returns, since you will have to take the responsibility to support him in Canada. Please speak to your lawyer as I know couples HAVE immigrated to Canada where one was negative and one positive. I know that the address issue is important and I had to mention it so you are not caught off guard years later. David Cohen himself can advise you or the lawyer you are speaking to in Vancouver. it is a shame that Canada being compassionate on other grounds is very strict on some health issues and I hope this changes soon! Again, please explore all your options as success has been achieved by people in your position before!

 

[2moms2bc]

Ditto the previous post. I know of at least one guy who was granted PR status being open about his HIV-positive status. There is considerable debate over what medical conditions, if any, will cause a denial. Many have suggested that few get denied, they just get categorized differently. I would definitely consult at least one other attorney. I hate to say it (and I'm licensed to practice!), but not all attorneys - especially in the immigration field - really know their stuff. AND, add to that the fact that with all the "guidelines" in the world, the CIC officers still have a fair amount of discretion... you just don't know. Good luck!