Conjugal Sponsorship of US Citizen

[elkan]

MatthewC,
My partner was turned back at the border in January, and when he returned with the proper paper work, he asked for a 6 month VISA at the port of entry, and they said no, they would only give him 90 days. The border agent said he can try to extend it, but because he has no employment and no permanent address, he could likely be refused. He was at the border for 4 hours with the border patrol. In our application we talked about this. Would that qualify? My immigration consultant seems to think it does. (But, I'm also his first conjugal partner case!)

 

[tgchi13]

No amount of combining your fairs will overcome the fact that to qualify as conjugal, there needs to be an impediment (beyond your control) to you living together long enough to qualify as common law, e.g. refusals for visas to visit each others countries. Since there's nothing to stop a US citizen coming to Canada as a visitor for 6 months, then extending for another 6 months in order to qualify as conjugal, it's quite possible you'll be refused under this class.

Also BeShoo, just for reference what happens after you sign the paperwork does matter legally. You have to be in a qualifying relationship both when you apply, when the visa is issued, and when you land and become a PR. If you end up in an appeal situation, that's a "de novo" hearing, which means if you have more proof since you submitted the application, you can use that to sway the appeal in your favour, even if it's evidence that wasn't available when you initially applied.

I think you misunderstood BeShoo's sentiment. I hope the OP didn't!

And no, a conjugal application does not always need a 'beyond control' scenario; it needs an understandable situation.

 

[tgchi13]

MatthewC,
My partner was turned back at the border in January, and when he returned with the proper paper work, he asked for a 6 month VISA at the port of entry, and they said no, they would only give him 90 days. The border agent said he can try to extend it, but because he has no employment and no permanent address, he could likely be refused. He was at the border for 4 hours with the border patrol. In our application we talked about this. Would that qualify? My immigration consultant seems to think it does. (But, I'm also his first conjugal partner case!)

You choose a consultant without conjugal experience? I'm keeping my mouth shut.

 

[BeShoo]

No amount of combining your fairs will overcome the fact that to qualify as conjugal, there needs to be an impediment (beyond your control) to you living together long enough to qualify as common law, e.g. refusals for visas to visit each others countries. Since there's nothing to stop a US citizen coming to Canada as a visitor for 6 months, then extending for another 6 months in order to qualify as conjugal, it's quite possible you'll be refused under this class.

Lacking an impediment may certainly cast doubt on the genuineness of your relationship, but I have yet to find any wording in the act or regulations requiring an "impediment (beyond your control)". If you know of any, I'd really like to hear about it.

Also BeShoo, just for reference what happens after you sign the paperwork does matter legally. You have to be in a qualifying relationship both when you apply, when the visa is issued, and when you land and become a PR.

I suppose I wasn't very clear in what I was trying to say. Sorry about that. You do have to be in a qualifying relationship at the three points in time that you mentioned. What I meant was that if you weren't in a qualifying relationship at the time of the application, entering into one afterwards will not make your application valid. I have read countless appeals cases where the one year leading up to the application date was examined thoroughly. The only way that following events can help with the status at the application date is that if there was some doubt, succeeding events may help to clarify the status as it was at that date. For example, if you were in a conjugal relationship for only 9 months at the time of application, it wouldn't help that it had become one year by the time the application was processed. It still wouldn't qualify.

My partner could not come to Canada for 6 months and extend for another 6 months. I wish it was that easy. When he came to visit me in February, he was unemployed and could only give his parent's address (where he "lived" for only one day before the trip) as a permanent address. The IO at the border very reluctantly gave him a 3-month VR, based on the fact that we had a partially complete PR application in hand (though we had no fee receipt). He asked for 6 months, but she would only give him three. Without some evidence that we were about to file an application, he probably would have been refused entry. He did get a 6-month extension at the end of the initial period, but they asked for an immigration medical to be done within 3 months of that, since we still hadn't filed the PR application. (It is taking much longer than we expected to prepare everything.) If we haven't filed by the time the extension expires, I don't think he'll get another extension.

If he could just stay here for a year, I'd happily file a common law application, but I don't think there's any way he can without us filing a conjugal one first. I've already been told sternly at the U.S. border that I "can't live in the U.S.," so I don't see myself moving there for a year either. As far as I'm concerned, I have an impediment beyond my control. He can't do a safe-sex sponsorship of me in the U.S. either.

 

[tgchi13]

Lacking an impediment may certainly cast doubt on the genuineness of your relationship, but I have yet to find any wording in the act or regulations requiring an "impediment (beyond your control)". If you know of any, I'd really like to hear about it.

I suppose I wasn't very clear in what I was trying to say. Sorry about that. You do have to be in a qualifying relationship at the three points in time that you mentioned. What I meant was that if you weren't in a qualifying relationship at the time of the application, entering into one afterwards will not make your application valid. I have read countless appeals cases where the one year leading up to the application date was examined thoroughly. The only way that following events can help with the status at the application date is that if there was some doubt, succeeding events may help to clarify the status as it was at that date. For example, if you were in a conjugal relationship for only 9 months at the time of application, it wouldn't help that it had become one year by the time the application was processed. It still wouldn't qualify.

My partner could not come to Canada for 6 months and extend for another 6 months. I wish it was that easy. When he came to visit me in February, he was unemployed and could only give his parent's address (where he "lived" for only one day before the trip) as a permanent address. The IO at the border very reluctantly gave him a 3-month VR, based on the fact that we had a partially complete PR application in hand (though we had no fee receipt). He asked for 6 months, but she would only give him three. Without some evidence that we were about to file an application, he probably would have been refused entry. He did get a 6-month extension at the end of the initial period, but they asked for an immigration medical to be done within 3 months of that, since we still hadn't filed the PR application. (It is taking much longer than we expected to prepare everything.) If we haven't filed by the time the extension expires, I don't think he'll get another extension.

If he could just stay here for a year, I'd happily file a common law application, but I don't think there's any way he can without us filing a conjugal one first. I've already been told sternly at the U.S. border that I "can't live in the U.S.," so I don't see myself moving there for a year either. As far as I'm concerned, I have an impediment beyond my control. He can't do a safe-sex sponsorship of me in the U.S. either.

What is a safe sex sponsorship/application?

 

[elkan]

I agree, I think that poses an impediment to being common-law. In January, my partner was only given the 90 day Visitor Record as well, but we were 6 months away from even beginning to file. So the question is, how can you live common-law if Canada or the US doesn't allow you to stay in their country with sufficient evidence that you are going to leave and not stay there? Border patrol literally told my partner, "You and an example of someone we will not let in the country. YOu have no job to go back to. We don't think you are going to leave after 6 months. Isn't that something that's beyond my control? They seriously made it sound like he only had 90 days in our country, so we abided. He left for the US after and I have been the one to go back and forth because I have a permanent job, and I do own my own residence.

Thoughts?

 

[tgchi13]

I agree, I think that poses an impediment to being common-law. In January, my partner was only given the 90 day Visitor Record as well, but we were 6 months away from even beginning to file. So the question is, how can you live common-law if Canada or the US doesn't allow you to stay in their country with sufficient evidence that you are going to leave and not stay there? Border patrol literally told my partner, "You and an example of someone we will not let in the country. YOu have no job to go back to. We don't think you are going to leave after 6 months. Isn't that something that's beyond my control? They seriously made it sound like he only had 90 days in our country, so we abided. He left for the US after and I have been the one to go back and forth because I have a permanent job, and I do own my own residence.

Thoughts?

My thought would be this: What did they grant him as a Visa when asked "stamp" his passport/provide a visitor's visa?

 

[matthewc]

Lacking an impediment may certainly cast doubt on the genuineness of your relationship, but I have yet to find any wording in the act or regulations requiring an "impediment (beyond your control)". If you know of any, I'd really like to hear about it.

OP2 5.45:

http://www.cic.gc.ca/english/resources/manuals/op/op02-eng.pdf

5.45. What is a conjugal partner?

This category was created for exceptional circumstances – for foreign national partners of
Canadian or permanent resident sponsors who would ordinarily apply as common-law partners
but for the fact that they have not been able to live together continuously for one year, usually
because of an immigration impediment. In most cases, the foreign partner is also not able to
marry their sponsor and qualify as a spouse. In all other respects, the couple is similar to a
common-law couple or a married couple, i.e., they have been in a bona fide conjugal relationship
for a period of at least one year.

...the rest of that section is advised reading for anyone thinking of applying under the conjugal class.

 

[elkan]

I'm not sure what you're question is asking. He was given a 90 Day Visitor Record, and they also stamped his passport and wrote 90 days on it.

 

[tgchi13]

I'm not sure what you're question is asking. He was given a 90 Day Visitor Record, and they also stamped his passport and wrote 90 days on it.

Clearly we have all gone on our tangents. My apologies, but to whom is this question addressed?

 

[BeShoo]

What is a safe sex sponsorship/application?

Sorry, I meant to type "same-sex". I need to proofread better. :-[

 

[elkan]

Clearly we have all gone on our tangents. My apologies, but to whom is this question addressed?

Sorry, it was to you. Newbie status, I didn't see the quote button.

 

[tgchi13]

Sorry, it was to you. Newbie status, I didn't see the quote button.

To whom are you asking what?

 

[elkan]

Tgch13, you wrote: "My thought would be this: What did they grant him as a Visa when asked "stamp" his passport/provide a visitor's visa?"

I responded by saying I wasn't sure what you were asking, but replied that my partner was issued a 90 Day Visitor Record and they also stamped his passport and wrote 90 days on that as well.

Sorry, I just didn't understand your question.

 

[BeShoo]

This category was created for exceptional circumstances ...

... usually because of an immigration impediment. In most cases, the foreign partner is also not able to marry their sponsor and qualify as a spouse.

I am aware of what it says in the processing manual, but ultimately, the act and regulations trump everything and I cannot find any mention of "exceptional circumstances" in the act or the regulations. I realize that it might take an appeal to prove that, but the processing manual doesn't make "exceptional circumstances" a requirement either. It only says that they are the reason that the category was created in the first place, which is true. In the rest of what I quoted, notice the use of "usually" and "in most cases." Further on in the manual, it says, "If they could have lived together, but chose not to, then it is reasonable for the officer to question whether the relationship is a conjugal relationship." It does not say, that "if they could have lived together, they are automatically disqualified."

From OP2: "Non-cohabitation for purely personal or economic reasons (i.e., did not want to give up a job or studies) does not normally qualify as a sufficient impediment, but should be assessed on a case-by-case basis." Although it does not normally qualify, I have seen cases where it was allowed. I'm just disputing the claim that "there needs to be an impediment (beyond your control)." It's just too much of a blanket statement. I have read many, many appeals cases (all I have to go on) and I have seen no evidence that anyone was ever refused based solely of lack of an impediment. Applications are only refused based on the lack of a genuine conjugal relationship. The lack of an impediment may contribute to such a finding, but it will never be the sole reason.