Extension denied, need advice urgently!

[MicheleG]

After searching online for hours, I am hoping someone at this forum can give us some guidance.

My fiance is a U.S. citizen and I am a Canadian citizen. We have been together nearly 2 years, and at the end of May 2015 he came to Canada on a visitor visa to be here for the birth of our son on June 11, 2015. The visitors visa that he was originally given at the Port of Entry had an expiry date of Sept 30, 2015. We applied for an extension of his visitors visa in July 2015, more than 60 days in advance of expiration.

Meanwhile, having been engaged since Dec 2014, we have been planning our wedding date for November 21, 2015. Our intention is for me to sponsor him to apply for Permanent Residency.

Today we finally got the results of his visa extension application, which was rejected. In the letter it also stated that his temporary resident status expires effective today and that he should leave immediately unless he applies for a restoration of status within 90 days.

We have not yet submitted our Spousal Sponsorship PR application, as our wedding date is just around the corner. In hindsight we should have gotten married months ago, but we did not foresee that his extension would be denied.

If he does not leave Canada today, but instead stays and applies for the restoration, will this affect his PR application? Can we apply for restoration at the same time as the Spousal Sponsorship?

Our baby just turned 5 months yesterday, and it will be devastating to our family if we have to split up.

Does anyone have guidance on what we should do next?

Please help!

Thanks so much,
Michele

 

[scylla]

Yes - he can stay and apply for restoration. No - this shouldn't impact the PR application.

Make sure you are applying inland not outland. Since he's out of status, there are absolutely no advantages to applying inland (he won't benefit from the open work permit pilot). Sumit the outland application as soon as you can after you get married. The restoration may take up to 4 months to process. If that is refused as well - he will in fact have to leave.

 

[Ponga]

Make sure you are applying inland not outland.

Ooopsie! LOL!

 

[scylla]

Ooopsie! LOL!

Sigh. Yes - got that backwards. Thanks.

 

[MicheleG]

Yes - he can stay and apply for restoration. No - this shouldn't impact the PR application.

Make sure you are applying inland not outland. Since he's out of status, there are absolutely no advantages to applying inland (he won't benefit from the open work permit pilot). Sumit the outland application as soon as you can after you get married. The restoration may take up to 4 months to process. If that is refused as well - he will in fact have to leave.

Thank you Scylla, your feedback is greatly appreciated.

Just to be sure I understand what you are saying, since his visitor visa extension was denied, he has lost temporary resident status and has therefore lost the chance to apply for an open work permit with the PR application?

You are saying we need to apply for the restoration, and then asap send in the "outland" PR application? The processing times of 62 days to assess me as sponsor, plus 27 months for processing in Los Angeles, means he would not be able to work/live in Canada for 2.5 years at minimum?

He hasn't even been in Canada for 6 months yet, as he entered on May 31, 2015. The border agent gave him a certificate called a "Visitor Record", issued May 31, 2015 with expiry date Sept 30, 2015. I'm not sure why this document did not allow him to at least stay 6 months, but now this denial of extension (dated today) says his status expires today (still not even 6 months from entry point). Is there any way to appeal this?

If we were to apply for the restoration and be approved, then send in an inland PR application afterwards, might he then be able to qualify for work permit?

If we apply for the restoration right away, what is his status while we wait for a response? Is he "illegal" or is he "implied"?

Sorry for all the questions, but it looks like I may have to sell my house, quit my job, and move my family to the states.

Thank you again for any further guidance.

 

[Ponga]

Most Americans are processed in Ottawa, and complete the entire Outland process in ~ 6-10 months. Only those with `issues', such as criminality or concerns of a genuine relationship, are processed in the states.

Voila! Nervous breakdown averted!

 

[Owl29]

I hope you don't mind if I ask, but what was the reason for denying?
It's quite rare that they won't extent visitors stay for USA.

 

[MicheleG]

I hope you don't mind if I ask, but what was the reason for denying?
It's quite rare that they won't extent visitors stay for USA.

We are unsure of the reason for denying. Here is the exact text of the letter:

November 12, 2015

This letter refers to your application for a visitor record.

Based on your application and accompanying documentation that you have provided, I have
carefully considered all information and I am not satisfied that you meet the requirements of the
Immigration and Refugee Protection Act and Regulations. Your application as requested is
therefore refused.

Persons wishing to extend temporary resident status in Canada must satisfy an officer that they
will leave Canada by the end of the period authorized for their stay, that they will not contravene
the conditions of entry and that they do not belong in a category of persons inadmissible to
Canada under the Immigration and Refugee Protection Act.

In reaching a decision, an officer considers several factors, which include the applicant’s:

1. Reason for original entry and reason for requested extension;
2. Ties to country of permanent residence, including:
- employment and study commitments;
- family ties and responsibilities;
- status (citizenship or immigration status);
3. Financial means for the extended stay and return home;
4. Travel and identity documents;
5. Probability to leave Canada at the end of authorized stay.

After considering all the circumstances of your case, I am not satisfied that you meet the
requirements of the Act and Regulations.

You must leave Canada on or before the expiry of your current document or, if your
document has already expired you must leave Canada immediately. Failure to do so
could result in enforcement action being taken against you.

[X] We also wish to advise you that your temporary resident status expires on 2015/11/12.

You may apply for restoration if, within 90 days from the expiry of your temporary resident status
you submit:
 a completed application form;
 applicable fees for restoration and for the immigration document(s). Payments should
be made online at (link). When you are finished, you must print the receipt of
payment and include it with your application.
 all required documents in support of your application.

Please consult the section “Restoration of status” in the application guide: “Applying to
change conditions or extend your stay in Canada”. Restoration applies to each member
who has lost his or her status. Please note that there is no guarantee your application will be
accepted.

Should you choose not to apply for restoration of your status, you will remain a person
without legal Temporary Resident Status and as such will be required to leave Canada
immediately. If you do not leave Canada voluntarily, enforcement action may be taken
against you.

When should I contact CIC?

You must notify Citizenship and Immigration Canada (CIC) of any changes to your application.

Examples of changes include:
 Changes in your personal circumstances, such as birth or adoption of a child, death of a
family member, a marriage or a divorce;
 Change of contact information (e-mail, mailing address, telephone number);
 Appointment or change of immigration representative or designated individual;
 Decision to withdraw your application.

Changes to your address should be made through our online service at
(CIC link provided)

Sincerely,
Officer P
Case Processing Centre Vegreville

 

[scylla]

He needs to be in status when the inland application is received in order to qualify for the open work permit pilot. And right now he has no status in Canada. If you apply for restoration and then submit the inland application, he will still be out of status. You would have to wait until the restoration is processed (which could take months) and approved (i.e. he's back in status) to apply inland and qualify for the OWP pilot.

How long he is given when he enters Canada (or if he is even allowed in) is up to the border official. There is nothing to appeal. Getting a six month visit is not a right. Even entering Canada is not a right (and yes - Americans are sometimes refused entry). So again, nothing to appeal.

If you apply for restoration - he will NOT have implied status - he will be without status in Canada until the restoration application is processed.

As explained above, an outland application would be processed through Ottawa. You'd be loooking at procesing of under a year.

 

[Ponga]

I suppose another option would be to at least pay the fees for sponsorship ($1040 total, but only $550 is actually required at the time the application is submitted) and have him leave Canada ASAP, in the hopes that it's only temporary. When he attempts to re-enter, he can provide the receipt as proof that you've started the sponsorship process. He should be prepared to provide proof that he DOES have ties to the U.S., and that he understands what Dual Intent is (which you can find on the CIC website). If he is allowed to enter Canada, you could then submit whichever application works best for your family.


The potential problem with submitting an Outland application from within Canada, without status...is that nobody seems to know how the CBSA treats those applicants, as opposed to the Inland applicant, that are usually left alone until they have a decision on the first stage (known as AIP).

 

[canuck_in_uk]

Pay the PR fees and have him undergo the medical, then apply for restoration of status as a visitor. Include copies of the PR/medical receipts, proof of finances showing that he (or you or family) can support his extended stay, proof of the upcoming marriage, a copy of your child's birth certificate and a letter explaining the situation. Don't wait to do this; get it done now.

After you get married, submit an outland app. As said above, it will be processed in Ottawa, averaging around 8 months right now.

 

[canadianwoman]

How big and expensive is your wedding going to be? If it is anything more than a quick legal ceremony, I would apply for the restoration, so he can stay here at least until the wedding ceremony. He can then stay on until the decision about the restoration is made.

If he applies outland, his processing will not be done in the US, so it won't take 2 years. It will probably be done in less than a year. If he applies inland, he can't get the OWP anyway, unless his status is restored, which will take months to find out. It will probably be quicker for him to get his PR outland than to get an OWP inland, if in fact he is ever able to get one.

 

[MicheleG]

Thank you all so much for this information. Your advice is a godsend to us.

So it appears a consensus that we should apply for PR via the outland process, taking 8-12 months.

The question is if/when/how to apply for the restoration of visitor status. Some have said it needs to be done right away, but the letter says he must apply for restoration within 90 days, and someone in this thread said it takes about 4 months after applying for restoration to get an answer. If we waited until closer to the end of the 90 day window to apply for restoration, then wait the 120 days for answer, does this buy him 90+120 days in Canada while we wait for an answer on the outland PR application? Or is there an advantage to sending in the restoration immediately instead of waiting?

Worse case scenario would be if his restoration is denied while in Canada awaiting the outland PR answer, he'd then have to leave immediately and continue waiting from the USA. I just wonder if we can narrow the window of time outside of Canada?

Thank you again, you people have already helped us so much.

 

[SenoritaBella]

Right now, he is without status. The risk with waiting to apply for restoration is, there is no telling when CBSA could take action against him (i.e. removal). I think it's in your best interest to submit the restoration application asap, which also shows a readiness on his part to regularize his status.

 

[o6ocpaka]

Just wondering, if he is a US citizen why that denial letter refers to a Refugee Protection act?