CIC Says My Spouse Must Re-Enter Canada from USA?

[brown bear]

I am Canadian, my spouse is American; we applied for PR on March 1st, 2016, via Outside of Canada (vs Within Canada) so about 6-7 weeks ago. We've been living in Canada together. Today she got an email from CIC with the following:

"It appears that you are living in Canada without status since XXXX-XX-XX. According to the Immigration and Refugees Protection Regulations, R11 (1)(a), your application cannot be processed from your current country of residence, Canada.

As this is the only outstanding requirement for you to achieve permanent resident status, please provide evidence that you have a valid status in Canada. If you do not have valid status in Canada, please provide evidence that you have left the country. For example, you can cross the border and enter the United States, and then re-enter Canada and ask for your passport to be stamped. You can send us a photocopy of your stamped passport, as evidence that you have entered Canada legally. It will then be possible to continue with the processing of your application."

When we applied via Outside of Canada, I thought it didn't matter if she lived in Canada while the application was processing. Is this not correct? Has anyone else been in this scenerio? Crossing the border and coming back isn't a big deal, beyond the worry she won't be allowed back into the country. We're an hour from the US border.

 

[Ponga]

Hmm...This is the first time I've seen this. An Inland applicant has been able to apply without status for years, but perhaps CIC is cracking down on Outland applicants without status.

It sounds like you have no choice but to comply with the letter. I'd take a copy of it with you when you go to the POE. She should also understand what Dual Intent is (check the CIC website) and how she can convince the CBSA officer that she understands the rules. Having an active sponsorship application in the queue should help her, IMO.

It's important to know that she cannot legally `live' in Canada until she has her PR. She has been `visiting' you here...even though she really has been living with you. That's the delicate dance with this whole process.

Good luck!

 

[Rob_TO]

When we applied via Outside of Canada, I thought it didn't matter if she lived in Canada while the application was processing. Is this not correct? Has anyone else been in this scenerio? Crossing the border and coming back isn't a big deal, beyond the worry she won't be allowed back into the country. We're an hour from the US border.

Residing in Canada during the process isn't the issue, the issue is that she's here illegally. Why didn't you apply to extend her visitor status when her original time (usually 6 months) was about to expire?

Certainly she can exit/re-enter Canada and then send that info to the visa officer to continue app processing. If she's denied entry back to Canada, she will need to wait in the US until her PR app is completed. However as long as you show CBSA proof of the PR app in progress, she should be allowed back in.

 

[brown bear]

Thank you - we will take the letter with us and cross the border. As for renewing her visitor visa, that was an oversight on our part and a regrettable one. Lesson learned. If she's allowed to re-enter, we will be sure to extend her visitor visa the next time.

 

[Aquakitty]

I am Canadian, my spouse is American; we applied for PR on March 1st, 2016, via Outside of Canada (vs Within Canada) so about 6-7 weeks ago. We've been living in Canada together. Today she got an email from CIC with the following:

"It appears that you are living in Canada without status since XXXX-XX-XX. According to the Immigration and Refugees Protection Regulations, R11 (1)(a), your application cannot be processed from your current country of residence, Canada.

As this is the only outstanding requirement for you to achieve permanent resident status, please provide evidence that you have a valid status in Canada. If you do not have valid status in Canada, please provide evidence that you have left the country. For example, you can cross the border and enter the United States, and then re-enter Canada and ask for your passport to be stamped. You can send us a photocopy of your stamped passport, as evidence that you have entered Canada legally. It will then be possible to continue with the processing of your application."

When we applied via Outside of Canada, I thought it didn't matter if she lived in Canada while the application was processing. Is this not correct? Has anyone else been in this scenerio? Crossing the border and coming back isn't a big deal, beyond the worry she won't be allowed back into the country. We're an hour from the US border.

R(11) (1)(a) states:

Place of application for permanent resident visa

11 (1) An application for a permanent resident visa — other than an application for a permanent resident visa made under Part 8 — must be made to the immigration office that serves

(a) the country where the applicant is residing, if the applicant has been lawfully admitted to that country for a period of at least one year;

The wording is vague as usual. It says "lawfully admitted". To me that means you didn't sneak into the country. That's not the same as being out of status. But, I could be wrong and they count being out of status as being unlawfully admitted once the status expires.

It doesn't actually say anywhere that I'm aware of that you need valid status for an outland app, so maybe they are cracking down, or you have an overzealous officer, or other people just got lucky.

Unfortunately you don't have a choice now and need to do what they say. I'm quite sure you will be fine as long as you bring that doc and some proof of support.

Oh just a thought, has she been out of status for over 90 days?

 

[brown bear]

"I'm quite sure you will be fine as long as you bring that doc and some proof of support."

Proof of support?

 

[Ponga]

Part of convincing the CBSA officer that she understands the issue of Dual Intent, is showing proof of funds and/or how she will be taken care of while she is visiting you in Canada. You can simply tell the officer that you will look after her.

Other important factors are having proof (if asked) that she still has ties back in the U.S. (housing, job, bank account, etc.). If the officer doubts that she really has ties back `home', s/he could very well refuse entry. She must convince the officer (if asked) that if her PR is denied, she will leave voluntarily.

 

[brown bear]

Thank you, all. I fear her original overstay could work against her, but her PR app working for her. Guess we'll find out soon enough.

 

[Ponga]

I just noticed the following in CIC document OP1 (section 5.17):

2. For the purposes of section R11, situations in which an individual is considered to have
been “lawfully admitted” will include (but are not limited to)

i. persons who were lawfully admitted, but no longer have legal status when the
application is submitted. For example, a person who has entered a country lawfully
but at some time subsequent to lawful admission has lost legal immigration status is
considered to have been lawfully admitted, whether or not status has been restored
at the time of the application to the visa office. Such applicants may or may not
qualify for a visa, but their application must be accepted for processing and assessed
on its merits;

This sounds like it's up to the individual visa officer to determine whether or not the foreign national can qualify for PR if they are in Canada without status and have applied Outland.

And, this:

3. Subsection R11(1) also stipulates that an applicant must have been lawfully admitted
for at least one year when applying for permanent residence.

Persons who are applying for permanent residence must be residing in and have been
legally admitted for a period of at least one year to the country which the visa office
receiving the application serves. The applicant is not required to have been residing in the
country for one year at the time of application, but to have been lawfully admitted to that
country for a minimum one-year period at the time of application.

For example, under subsection R11(1), an individual may have lawfully entered and be
currently residing in a country on the basis of a one-year work permit. Anytime during that
year, the individual would be eligible under subsection R11(1) to apply for permanent
residence to Canada through the visa office responsible for applications from the country in
which the individual is residing.

FWIW, OP1 was last updated March 15, 2016, but the last update to section 5.17 was in 2008.

 

[Kellyvalentine123]

you can apply outland and live in Canada as a visitor but on application you have to put an outland address for the PR applicant , not sure what address you put down . there must be someone to pick up mail at the US address such as a friend or family member. so immigration can send request for additional documents and CoPR. i believe this info is correct .......Correct me if im wrong .

 

[Rob_TO]

you can apply outland and live in Canada as a visitor but on application you have to put an outland address for the PR applicant ,

No you don't. You can just put your Canadian address down for everything, and CIC will mail everything to Canada directly.

 

[Aquakitty]

I just noticed the following in CIC document OP1 (section 5.17):

2. For the purposes of section R11, situations in which an individual is considered to have
been “lawfully admitted” will include (but are not limited to)

i. persons who were lawfully admitted, but no longer have legal status when the
application is submitted. For example, a person who has entered a country lawfully
but at some time subsequent to lawful admission has lost legal immigration status is
considered to have been lawfully admitted, whether or not status has been restored
at the time of the application to the visa office. Such applicants may or may not
qualify for a visa, but their application must be accepted for processing and assessed
on its merits;

This sounds like it's up to the individual visa officer to determine whether or not the foreign national can qualify for PR if they are in Canada without status and have applied Outland.

And, this:

3. Subsection R11(1) also stipulates that an applicant must have been lawfully admitted
for at least one year when applying for permanent residence.

Persons who are applying for permanent residence must be residing in and have been
legally admitted for a period of at least one year to the country which the visa office
receiving the application serves. The applicant is not required to have been residing in the
country for one year at the time of application, but to have been lawfully admitted to that
country for a minimum one-year period at the time of application.

For example, under subsection R11(1), an individual may have lawfully entered and be
currently residing in a country on the basis of a one-year work permit. Anytime during that
year, the individual would be eligible under subsection R11(1) to apply for permanent
residence to Canada through the visa office responsible for applications from the country in
which the individual is residing.

FWIW, OP1 was last updated March 15, 2016, but the last update to section 5.17 was in 2008.

Good find. #1 is pretty much what I figured. I take it to mean the individual may or may not qualify for a visa based on their personal situation like any other visa. I think this visa officer was somewhat incorrect in this assessment, but what can you do. That rule states the PR application must be accepted.

As for #2, that doesn't really make sense for a US PR applicant because the visa office is the same for an American or a Canadian...


The applicant is not required to have been residing in the country for one year at the time of application, but to have been lawfully admitted to that country for a minimum one-year period at the time of application.

So wouldn't that mean a US applicant is obviously "lawfully admitted" to the US no matter if they are in Canada or not, and the VO for both Canada and US is the same so it shouldn't matter.

 

[Ponga]

Good find. #1 is pretty much what I figured. I take it to mean the individual may or may not qualify for a visa based on their personal situation like any other visa. I think this visa officer was somewhat incorrect in this assessment, but what can you do. That rule states the PR application must be accepted.

As for #2, that doesn't really make sense for a US PR applicant because the visa office is the same for an American or a Canadian...


The applicant is not required to have been residing in the country for one year at the time of application, but to have been lawfully admitted to that country for a minimum one-year period at the time of application.

So wouldn't that mean a US applicant is obviously "lawfully admitted" to the US no matter if they are in Canada or not, and the VO for both Canada and US is the same so it shouldn't matter.

Persons who are applying for permanent residence must be residing in and have been
legally admitted for a period of at least one year to the country which the visa office
receiving the application serves.

Who knows what really happens, but since your husband was approved while being out of status, perhaps he was simply one of the lucky ones.
*shrug*

 

[methyl]

Persons who are applying for permanent residence must be residing in and have been
legally admitted for a period of at least one year to the country which the visa office
receiving the application serves.

If that's the rule how are outland applications being processed for anyone at all for those that are applying from within Canada at the time of application?
What is meant by "residing in"?
Very convoluted rules.

 

[brown bear]

We left Canada and re-entered and she obtained a one year Visitor Record without any problems and got her passport stamped. Sent the updated information to CIC.