Canadian maiired to Jamaican American

[lamata]

We're looking for some advise on the best direction to take. I am a born Canadian. My spouse was born in Jamaica to parents with US citizenship. My spouse has a US green card but is not a citizen. We were legally married in Canada. I have a college degree and my spouse has an Associates Degree in Business Administration. We both have children from previous relationships. My children are in Canada & my spouses child was born in the US but resides in Jamaica. We do not intent to have my spouses child come to Canada for at least another 4 years, if at all. I have not sponsored anyone previously and do not have a criminal record but am in default on my student loan and was recently laid off from my employment. My spouse has a criminal record in the US and entered Canada as a visitor and has not overstayed. We currently reside in Alberta. My spouse now has an offer of permanent employment from a Canadian company (unrelated to their degree) and should qualify for an open work permit through AINP Employer driven semi-skilled worker category in NOC category C or D. I am unsure that I qualify for spousal sponsorship as I may be considered as owing money to the Crown. I qualify for Jamaican citizenship by marriage but we would prefer to remain in Canada, legally, for the next few years. What is our best course of action?

 

[scylla]

You'll need to start by telling us more about your spouse's criminal record in the US. What was he charged with? When / how long ago? When did he finish his sentence / charge related to the crime? This is important because there is a chance he may be inadmissible to Canada at this time and therefore can't be sponsored.

 

[lamata]

Served 2.5 years and completed sentence more than 10 years ago. Entered Canada legally as a visitor from Jamaica via US less than 4 months ago.

 

[scylla]

Have you investigated what the equivalent of this charge would be in Canada? This will determine if he's deemed rehabilitated since it's been more than 10 years since his sentence was completed - or if he will have to go through the process of applying for rehabilitation before he can be sponsored as your spouse, apply for PR himself (e.g. through AINP), or even apply for a work permit.

They key is whether his offence is punishable by a maximum term of imprisonment of less than ten years - or if it's punishable by a maximum term of imprisonment of ten years or more. If it's the first - he's deemed rehabilitated and you can go ahead and sponsor him (or he can apply for PR himself). If it's the second, then he will need to apply for rehabilitation.

And just to be clear - what sentence he received isn't relevant here - it's what the maximum term of imprisonment is for that offence in general.

 

[lamata]

It was punishable by less than 10 years and the sentence was completed more than 10 years ago. We are unsure which route would be most expedient for us to apply. Would it be best to apply for spousal sponsorship & risk my being rejected as a sponsor? To apply for an open work permit while already in Canada? Or to apply to change status now that they are in Canada and we are legally married? What about our children - do we need to make an application for them as well, despite not residing with either of us?

 

[scylla]

You shouldn't be rejected as a sponsor based on your student loan default alone. You would only be refused if you were on social assistance / welfare or bankrupt.

Assuming his children are under 19 years old, they will have to be included in his application (although they can be flagged as non-accompanying, meaning they don't plan to come to Canada immediately). Regardless of whether they are accompanying or non-accompanying, they will have to complete a medical and he'll need other key information for each of them (e.g. copy of their passport).

Unfortunately the outland processing times for Kingston are quite long (spousal sponsorship). So if you're going to go the spousal route, it may be better to apply inland (this will give him an open work permit at around the 12 month mark assuming there are no complications in your application).

I'm not familiar with the AINP processing times and don't know if that might be faster.

Hope this helps.

 

[lamata]

Thanks scylla, It is a relief to know that I will likely be successful in a spousal sponsorship application.

All of our children are under the age of 19 and none of them currently reside with us so will be non-accompanying in both cases. Thee majority of documentation for them is in either Jamaica or the US, so that makes things a little more complicated.

What we really need to know is which route would be most expedient to apply. We qualify for spousal sponsorship, Temporary Foreign Worker and Open Work Permit categories. From what I understand, particularly for Americans, is that the inland process is long and frustrating. If I apply and am approved for spousal sponsorship, what needs to happen to then obtain health insurance, drivers license, etc. while waiting on the permit approval? The employer is desperate for my spouse to start employment - is it possible to begin employment while the application is underway?

 

[scylla]

No open work permit is granted as part of the outland process. If your spouse applies outland and wishes to work before PR is granted, then the employer will have to obtain an approved LMIA to request permission to hire your spouse (as a foreign worker). This will involve first advertising the job for a minimum of one month to prove no Canadian could be hired for the role. The employer will then have to pay a $1K processing fee and submit the LMIA application (which can take anywhere from 6-20 weeks to process). If/when the LMIA is approved, your spouse will then qualify to apply for a closed work permit. If your spouse applies for PR using the inland process, he will qualify for an open work permit once the file has first stage approval. This is currently taking 12 months for straight forward applications.