appeal for American partner

[tgchi13]

I see a few others here who are Canadians with American partners, so think I finally found the right place for knowledge and maintaining my peace of mind.

We just got the rejection notice from Immigration stating that the immigration officer reviewing my partner´s application found that they were "not satisfied that you are not inadmissible" and the main reason seems to be based on a line "neither *tgchi13* nor your Canadian lawyer know how to contact you in the US"...

We are entering year five of daily contact and they appear to be basing this claim on an email they received from a lawyer we had been asking to be removed from the file (accompanied by the proper form and with assistance of our MP´s office no less!) This lawyer reported that when they asked me how to contact my partner I responded that the best way was via email. I was not asked nor did I say that was the only way.

I´m a Canadian-born citizen and he is an American-born citizen and hearing them claim that he views our relationship as "nothing more than your best means of obtaining permanent residence status".

I´m Canadian! He´s American! We are TWO years into this application and have only gotten this far by utilizing our MP and we get this?

Can anyone provide information regrading the appeal process please?

 

[Swede]

First of all, I'm sorry to hear about your rejection...

What class was your partner applying under exactly?

 

[tgchi13]

Hi! We applied under "conjugal relationship" as we had not been living together at that time. Since submitting the application, he has virtually lived here, only returning to the States to remain legal.

 

[Swede]

Ok. Applying as conjugal partners is very tricky to pull off. You need to prove, without a doubt, that you and your partner have been unable to live together even though you want to and I guess that it was deemed too easy for a Canadian to live with an American, and vice versa, for the CIC to accept your application.

 

[tgchi13]

Not a very good legal advise all round as it's turned out, it would have been untruthful at the time to say we were living together as we didn't begin doing so until after the application was filed.

I'd been married and didn't want to do it again and now all I want is to not lose him. I guess I tell them that - that we have lived together within the laws permitting him to be here and we were not officially living together at the time we filed so that we could file an outland application. And pray that someone in this process has mercy on us for trying to do it right.

 

[ariell]

Not a very good legal advise all round as it's turned out, it would have been untruthful at the time to say we were living together as we didn't begin doing so until after the application was filed.

I'd been married and didn't want to do it again and now all I want is to not lose him. I guess I tell them that - that we have lived together within the laws permitting him to be here and we were not officially living together at the time we filed so that we could file an outland application. And pray that someone in this process has mercy on us for trying to do it right.

To be honest, I don't think stating that you were living together 'within the limit of the law' will change anything. It still won't change the fact that you do not fit the requirements of a conjugal class application. To apply in that class, you have to have BOTH an immigration barrier that would preclude you from meeting the 12 month cohabitation requirement for common-law AND a reason why you cannot marry. You have neither. It's not about it being inconvenient to marry, it's about it being impossible. So a same-sex couple where marriage is illegal in their country would be a perfect example. That fact that you don't want to because it's inconvenient or not the right time isn't CIC's concern. Also, you need to show that you have 'substantially combined your affairs'. If you didn't even live together AT ALL (AND you have no reason why you couldn't do this being a Cnd.-US couple), I think it's pretty clear why you were denied.
Unfortunately, I think the only option for you now would be to live together for 12 months and apply as common-law or get married and apply under spousal.

Best of luck to you.

 

[Leon]

It seems like a stupid reason to reject you but yes, conjugal relationship was definitely not the best way to go. It even says on their website that conjugal is for people who for some reason can not live together or get married. You can do either as you have shown by living together with him in Canada on visit status and you could have gotten married but you didn't want to. Of course immigration will question your committment but they did not refuse you for that, they refused you for something else entirely. You should be able to appeal based on the fact that an incompetent (I assume) lawyer you fired tried to sabotage your case by giving immigration false information (if my understanding is correct, this is what happened).

Can you prove that you have been living together in Canada? Is he on your lease? On any of your utilities? Does he have a Canadian bank account? Canadian cell phone? Do his bank statements at least show that he's been making withdrawals or buying stuff in Canada for the last year? If yes, that is that you can prove that he's been living with you for more than a year, then you can ask to change your status to common law since you now qualify as common law.

As for applying outland or inland. You are always allowed to apply outland, whether he is living with you in Canada or not.

 

[tgchi13]

Hi, thanks everyone for replying. We have been told innumerable times that we could not change the status of the application, our lawyer told us we could not apply under common law on an outland application if he was living here but she also said and did many other incorrect things. Sigh.

This has become messy and complicated but I think it's worth attempting the ADR/IAD and it the ARD gets rejected then we reapply. This process has shown me that we are already, in our hearts, already wedded and that the piece of paper is far less traumatic to live with than living apart. We became engaged and have decided to proceed with the marriage regardless of Immigration as that is what is now right for us.

Some of the utilities were set up by him (phone service, internet) and in his name but we changed those so as not to violate the law. He has a spousal credit card, in on and uses my medical benefits and is my policy beneficiary. I have family and friends who can state that he has been living here.

I'm thinking that that a very unnecessary, costly and only marginally valuable lesson has been learned.

Yes, I think the refusal is based on false information from an unscrupulous lawyer and, because of that, I think that proving the relationship is a commitment is worth the ADR process.

There is something in the (appeal) letter that frightens me due to my lack of understanding:

"If the Appeal Division finds that an applicant is not a member of the family class, the Appeal Division will not have jurisdiction to consider the appeal."

How is that possible? How is the IAD to determine that he is family class until after considering the appeal? I´m not wording this well at all but it seems like a catch-22, and not in our favor. I think the relationship being valid is easily provable but I still don´t understand how the Appeal Division can find that an applicant is not a member of the family class, before considering the appeal and so not have jurisdiction to consider the appeal.

 

[Leon]

Your lawyer was wrong. You can apply outland even when he's living in Canada, even if you are married and he's living in Canada, even if he were legally in Canada as a temporary worker or a student. You can always apply outland.

As for changing the status of your application, maybe there's something that says you can't but it's definitely new information about your application that immigration should have. If they don't believe that your relationship was real based on the data you gave them at that time, they may reconsider when you give them new data that shows you living together.

Having his name on utitlities would not have been breaking any law as far as I can see but get together all things that prove that he has been living in Canada for the last year. I would say his cell phone bills and bank statements might be the best data. If he doesn't have them anymore, he may be able to get copies. Him having a visa card on your account is also a good thing. Get some statements from that as well.

 

[wasted_year]

all lawyers are full of shit! they should be round up and burned at the stake. obviously i'm quite unhappy with mine. i urge everyone about to undertake this to do it themselves!

 

[tgchi13]

Hi wasted_year, while I do agree with you that some lawyers bite, I must say that if we are driven to starting over I still think I would use a consultant as, after one rejection...well I'm sure you can empathize with what another would mean.

Luckily there are others who refuse to give up. People using the family class under false pretenses and then abandoning their spouse has really messed things up for the rest of us.

I'm still shocked that they think an American would find Canada so much better as to need to marry to get it. There is nothing for him here that he can't/doesn't have in the States except me and our life. We decided he would move here because I have family and he has none and my parents are aging and I am pretty close to them. He's doing this to benefit me, not so much himself and, as you all know, America and Canada are frighteningly similar these days so there is little to run from/to and, frankly, Canada hasn't been the kindest to him.

 

[Karlshammar]

Oh, don't be ridiculous! Most lawyers are hard-working professionals who are very good at what they do. My lawyer was extremely competent, gave me lots of useful information and assistance, and was never wrong.

When you condemn an entire group of people for the actions of a few you just sound old, bitter and prejudiced. I wonder how you would feel if you came to Canada and people started telling you everyone fron your country is full of shit because they once met a bad person or two from there...

all lawyers are full of *censored word*! they should be round up and burned at the stake. obviously i'm quite unhappy with mine. i urge everyone about to undertake this to do it themselves!

 

[tgchi13]

Karishammar, I've been wondering something that you may know - is there a website for clients to rate lawyers similar to the one where patients can rate doctors?

 

[NYCtoNB]

DON'T TAKE HIM OFF OF YOU BILLS
having his name shown on things like that help prove your case not the other way around. there is no law that prevents his name being on you utitlities. having both names on is even better. i very much plan on including our bills in the app package.

 

[tgchi13]

NYtoNB...

I am in the process of correcting this as I write!