IEC / Visitor Visa / PR for Chilean fiancee in Canada

[kyc221]

Hello,

We just discovered this forum as we were searching for immigration information, and we're hoping someone here can help answer our questions.

I'm a Canadian citizen (born and raised) and my fiancee is currently living with me in Canada, having arrived from Chile by way of the 1-year IEC program (Working Holiday). Her IEC visa runs out in March 2012 and her OWP expires in May 2012. We're looking for ideas on how she can stay in Canada while her PR application is processing. We're planning on applying for the PR in May, as this is when we will qualify as common-law. There is a chance we will get married by then as well, so we may end up applying for her PR as my spouse.

Regardless, our immediate concern is how she can stay in Canada while we submit and await the AIP and OWP in 11-12 months from May 2012. Can she apply for a visitor visa and keep extending until we get AIP, or will this hurt her PR application? While it is ideal that she can work during the phase 1 period, it is not a necessity, as I can support the two of us.

Our biggest concern with the visitor visa (if this is a viable option) is that we can't really prove that she would be going back after her visitor visa expires. Has anyone run into problems when applying for a visitor visa with less than adequate evidence of return to their home country? We would be applying for the visitor visa through the Seattle office, as we're in Western Canada.

Another question we have is in regards to implied status. If we do apply for the PR before her current OWP expires, does that mean she falls under implied status once it does expire and can legally stay? Does it also mean that she cannot leave the country while under implied status? Her father lives in Mexico and we were planning a holiday in the summer, if possible. However, we won't do that if it means she can't re-enter Canada. Again, if she has to stay in Canada while the PR processes and can't leave without jeopardizing her application/re-entry, she would be willing to do that.

We just don't want to be separated at all while going through the PR process, which is our biggest fear. Any help/advice would be greatly appreciated!

Thank you!

 

[kyc221]

To simplify:

Priority: for her to be able to stay in Canada during the PR process.
Questions:
1. Can she apply for a visitor visa and keep extending until we get AIP, or will this hurt her PR application? Should she apply for a change of conditions from IEC to visitor permit instead?
2. If she did not apply for visitor visa or change of conditions, and assuming we applied for PR a month before her OWP expires, would she fall under implied status?
3. Does implied status mean she's allowed to stay, but not to work?

We're looking forward to any advice you guys can give us. Thank you in advance!

 

[belee1985]

In order to apply for a visitor visa, she needs to apply at a Canadian consulate abroad. She cannot switch from her current status to tourist status. She needs to do that abroad. However, if she moves abroad you won't be considered common-law anymore given that you are not going to live together anymore (assuming that she will go abroad without you). The problem, also, is that if she applies for a tourist visa she needs to give strong supporting evidence that she is leaving the country at the end of her tourist stay. If they have any suspicion that she has a Canadian fiance in Canada, that is enough reason for them to reject her visa application.
The most easy thing to do in order for her to stay IN Canada without leaving the country and having the risk of having her tourist visa rejected is to get married, or for her to find an employer that would sponsor her so she could switch her status to a work permit.

 

[belee1985]

Oh and something else. While being processed for permanent residence, her status in Canada has to remain legal at ALL TIMES. That is, if her status expires in a month and you apply for permanent residence in 2 weeks, it's not gonna work. She needs to be on a legal visa at all times while in Canada (unlike the US, which authorizes the status to expire while the permanent residence in being processed).

 

[kyc221]

Thank you, Belee!

Okay, so applying to a tourist visa is going to be hard.

We're not opposed to getting married (we were planning on doing it anyway), but we would like to know how that helps her staying in the country. Are you saying that it would give us legitimacy to apply for PR, and then she would fall under implied status while it is being processed?

Wouldn't 'implied status' mean she's staying legally in Canada?

Thanks again!

 

[belee1985]

You're welcome

Getting married would only help in order to have the permanent residence application be easier. Indeed, when applying as a common-law partner, they are generally stricter to ensure that it is in fact a romantic relationship and not just a roommate situation to help the other one immigrate.

In order for an applicant to be able to stay in Canada while the application for permanent residence is in process, the applicant (whether married to a Canadian citizen/ lawful permanent resident or not) needs to have a non-immigrant visa (work, study, etc...) that is valid for at least a year from the moment the application is sent out (if not more). If the status (tourist or whatever else) expires while the person is in Canada and the application for permanent residence is still in process, the person CANNOT stay in the country. In other words, as I said before, the person needs to be in a lawful status during the entire time the permanent residence application is being processed.

Therefore, if you still decide to apply for a tourist visa, she should NOT say that she is in a long-term relationship with a Canadian citizen, as this is enough proof to reject a non-immigrant visa application. She has to convince the immigration official that she will depart Canada at the end of her stay, even though she does not plan on doing so. It is the only way in your situation.

The other viable option to not be apart is to live together in the country that will process her permanent residence application.

I am sorry I don't have any better news as far as your options are concerned, but in order to have the application processed in Canada she needs to have a valid non-immigrant visa during the entire time the application is being processed.

 

[belee1985]

As for the "implied status" that you are referring to, that only applies if she applies for an extension of her working holiday visa since the processing times are generally relatively short. However, it does not apply to change from non-immigrant to immigrant status. For that, the person needs to be in a lawful visa status and not have the visa have expired.
She can either apply for a new work permit if she has an offer of employment from a company in Canada, or she can transfer to a school by asking for a student visa while in Canada. But as I said, she cannot have her visa expire while the permanent residence application is in process. That is only allowed when the person is asking for an extension or a change of non-immigrant status to another non-immigrant status.

 

[kyc221]

Thank you for clarifying our doubts, even if the news is not positive for us.
After reading this information, we're thinking of applying for a TRV this week (online), without mentioning she has a Canadian fiance. If it is accepted, we'll have 6 months to figure out what to do and apply for the PR. If she doesn't get the TRV, we'll probably consider moving to her country and apply to the PR outland.

If you think of any other comments, they're very welcome.

You have been very helpful, thanks a lot!

 

[belee1985]

Good news (looked it up for you), as per new law spouses and common‑law partners of Canadian citizens and lawful permanent residents in Canada who apply for permanent resident status are no longer required to have legal immigration status provided that they have an eligible sponsor. All other eligibility requirements continue to apply. In other words, if her status expires while her application is being processed, it's ok !

 

[kyc221]

Does that mean that she can stay after her permit expires, while her PR is being processed?
Even before the AIP (and the OWP we would be submitting along it) comes through?
That would be great news, but we need to make sure the interpretation of that snippet won't put her PR at risk.

Thanks so much for looking into it!

 

[belee1985]

No, it is actually true, I called my former immigration consultant and he said yes, it is the case, as long as the sponsor (e.g. you) is still eligible !

 

[belee1985]

The sponsorship has to have been approved already. If you send it now (for example), you would be approved within something like two months (according to current processing times), so if the visa expires before then, then she needs to apply for a visa. But if lets say her visa expires in August and you send it now, then you're all good.

 

[kyc221]

If I understand you correctly, that is awesome news!!

Her work permit expires in May. We don't care whether she can work or not, as long as she can stay here under the special condition of lack of status while the PR processes- that's all we care about. We will probably send the papers for OWP along the PR application, attaching a note to have it processed once the AIP is decided.

Thanks so much for your help! This is a huge weight off our shoulders.

 

[barrya78]

Hello, I am in a similar situation with my Chilean wife. I am Canadian and now we both live in Italy but will return very shortly to Canada. I am curious about how this works regarding timing.

From above: "as per new law spouses and common‑law partners of Canadian citizens and lawful permanent residents in Canada who apply for permanent resident status are no longer required to have legal immigration status provided that they have an eligible sponsor. All other eligibility requirements continue to apply. In other words, if her status expires while her application is being processed, it's ok"

on the processing times website "Step 1 — Assessment of sponsor and person being sponsored," says it takes 11 months. So my question is, at what point am I, a Canadian citizen, deemed to be an elegible sponsor so my wife can remain in Canada legally while the inland PR process is going on? As a Chilean she gets 3 months temporary visas. In a post above Belee1985 said it would take about two months to be deemed an eligible sponsor so I am curious what takes 11 months as reported?

thanks