Inland Application without legal status

[nelsondowntown]

Ok.. This will be complicated, so I hope you guys take some time to give us a hand.

My sister (Canadian and Brazilian Citizen) lives with her boyfriend (Brazilian citizen) for the past 2 years.
They have the apartment lease in both names, text messages historic, tons of photos, friends family and everything else to prove their relationship.

They were going to apply as common-law but have decided to get married before applying for sponsorship.
Here is where things get complicated for the:

She worked for the past 4 years in a big company, but left to get back to university (she is 24 years old). She has good savings, but no paycheck.
HIS student/work visa expired in 2011, He kept working illegally WITH HIS EXPIRED SIN (and therefore paying taxes, but not declaring).

so the questions are:
1) will he be able to stay in Canada during the processing time for the application? considering that he has been living here for the past 3 years, being 2 with her and with apartment and other memberships in both names.

2) Is there such thing as restoring his status within Canada in this case?

3) Is my sister eligible to sponsor him? (considering that she does not receive any support from government or have any criminal record)

4) if he is sent back to Brazil, can he apply for a visitor visa to stay with her during the processing time?

Thank you guys. Appreciate any help.

 

[Konabo]

Ok.. This will be complicated, so I hope you guys take some time to give us a hand.

My sister (Canadian and Brazilian Citizen) lives with her boyfriend (Brazilian citizen) for the past 2 years.
They have the apartment lease in both names, text messages historic, tons of photos, friends family and everything else to prove their relationship.

They were going to apply as common-law but have decided to get married before applying for sponsorship.
Here is where things get complicated for the:

She worked for the past 4 years in a big company, but left to get back to university (she is 24 years old). She has good savings, but no paycheck.
HIS student/work visa expired in 2011, He kept working illegally WITH HIS EXPIRED SIN (and therefore paying taxes, but not declaring).

so the questions are:
1) will he be able to stay in Canada during the processing time for the application? considering that he has been living here for the past 3 years, being 2 with her and with apartment and other memberships in both names.

2) Is there such thing as restoring his status within Canada in this case?

3) Is my sister eligible to sponsor him? (considering that she does not receive any support from government or have any criminal record)

4) if he is sent back to Brazil, can he apply for a visitor visa to stay with her during the processing time?

Thank you guys. Appreciate any help.

There is a Humanitarian / Compassionate law that can be asked to be taken into consideration if she decides to apply to sponsor him as her spouse or common law. It would be wise to get an immagration lawyer to get detailed answers.... I think:/

 

[BeShoo]

I don't know the answers to all your questions, but I can answers some.

#2 Restoration of status can only be done within 90 days of status expiring.

#3 She can sponsor him. There is no minimum income level to sponsor a spouse. It only becomes an issue if it seems to the officer that they won't be able to support themselves if he is approved.

#4 If he is "sent back" to Brazil, he almost certainly will not be approved for a visitor visa.

Read this discussion for more information:
http://www.canadavisa.com/canada-immigration-discussion-board/out-of-status-inland-applicants-t154755.0.html

They probably should talk to a lawyer. The people who host this forum can help with legal services: http://www.canadavisa.com

Here is another one with some information on the web:
http://www.rogersonlaw.com/articles/Remaining-in-Canada-After-Your-Canadian-Visa-Expires.php

 

[scylla]

He should also stop working illegally immediately. This increases the chances he may be caught and sent home. It can also cast doubt that his relationship with your sister is genuine and may make immigration officials believe he's just looking for a way to stay in Canada after the expiry of his study permit.

 

[Ponga]

The honest answer to question 1 is...maybe.

He is technically classified to have a `Lack of Status', but that definition includes (aside from someone that has overstayed their visitor status) a person that has worked or studied without authorization. He has `two strikes' against him...overstay and working illegally.

The Inland application process does allow a person with lack of status to apply, however CBSA no longer has their Administrative Deferral of Removal in place that would previously allow an applicant to remain in Canada. If he is on CBSA's radar, he may be faced with a removal order before his PR is approved. It's really impossible to say for sure.

I can't imagine that a H&C claim would even be considered, as he has blatantly (at least in CIC/CBSA's eyes) violated the terms of his original student/work Visa.

If he does not have a removal order already issued, he can simply return to Brazil and thus resolve his status issue. He could then apply Outland and attempt to visit Canada. If he stays and submits an Inland application, but is removed...the application is automatically canceled.

Good luck!

 

[steerpike]

On the CIC website it says:

"Maintaining legal status
Spouses and common‑law partners of Canadian citizens and permanent residents in Canada who wish to 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."

But that is CIC. CBSA is different and they do care and they reserve the right to deport out-of-status people at any time. So it would be possible to do it, but risky. And if he does get a removal order then that will be a huge headache, and he could be banned from entering Canada for a few years (i think?)

A better way is for the BF to leave Canada now, because he is caught working illegally. Then get married, then apply for PR thru sponsorship. If he can come back on a visitor visa, he can stay here and apply Inland, and keep extending the visior visa until they get AIP (stage 2) and then he can get an Open Work Permit. This should only take 8 months according to current processing times. He should NOT work illegally during this time. Then another 8 months until get gets PR. Totaly time 16 months.

Or they can apply Outland which means the man would have to stay in Brazil until the process is complete which will take 12 months (1+11) at current posted wait times.

 

[nelsondowntown]

On the CIC website it says:

"Maintaining legal status
Spouses and common‑law partners of Canadian citizens and permanent residents in Canada who wish to 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."

But that is CIC. CBSA is different and they do care and they reserve the right to deport out-of-status people at any time. So it would be possible to do it, but risky. And if he does get a removal order then that will be a huge headache, and he could be banned from entering Canada for a few years (i think?)

A better way is for the BF to leave Canada now, because he is caught working illegally. Then get married, then apply for PR thru sponsorship. If he can come back on a visitor visa, he can stay here and apply Inland, and keep extending the visior visa until they get AIP (stage 2) and then he can get an Open Work Permit. This should only take 8 months according to current processing times. He should NOT work illegally during this time. Then another 8 months until get gets PR. Totaly time 16 months.

Or they can apply Outland which means the man would have to stay in Brazil until the process is complete which will take 12 months (1+11) at current posted wait times.

IF he leaves voluntarily Canada and apply for a visitor visa to apply inland afterwards with a legal status that sounds like the most reasonable solution. But does the office in Brazil, where he would apply for this visitor visa, would know that he was ever illegal? would that play against him to get this visitor visa?

 

[scylla]

IF he leaves voluntarily Canada and apply for a visitor visa to apply inland afterwards with a legal status that sounds like the most reasonable solution. But does the office in Brazil, where he would apply for this visitor visa, would know that he was ever illegal? would that play against him to get this visitor visa?

I think the chances of a visitor visa approval after such a long illegal stay are pretty much nil.

 

[mikeymyke]

This guy is only just hurting his own future PR application by continuing to work illegally.

 

[nelsondowntown]

This guy is only just hurting his own future PR application by continuing to work illegally.

Even if he stops before application and dont work till approval?
what would be a good solution?

 

[mikeymyke]

Even if he stops before application and dont work till approval?
what would be a good solution?

Yes because he's been working illegally for a very long time, 3 years. He broke the rules by overstaying his student visa. The CIC never forgets a person's past. It makes CIC think he's looking for a way to stay in Canada, and would make their relationship appear not genuine. Rather than spend the 1 year or so back home in Brazil after his student visa expired, get married, and apply for spousal sponsorship, he decided to spend 3 years illegally in Canada, create a bad history for himself, possibly creating delays in their future PR application, delays or even a refusal. It's a bad gamble, IMO.

The best solution is for him to go back to Brazil immediately, get married there, apply outland, inland is pretty much out of the question since his chances of getting another visitor visa is 0%.

 

[scylla]

Even if he stops before application and dont work till approval?
what would be a good solution?

It could still cause problems for his application because this increases the chances CIC may think his relationship isn't genuine and he's just using your sister as a means of staying in Canada. But ultimately it's obviously his choice. I hope your sister is sure he's in the relationship for the right reasons and isn't using her. If not, she should think long and hard about this.

At a minimum, they should probably expect longer processing times than normal for an inland application (possibly a couple of years longer). I think it's very likely the file will be transferred to Etobicoke without AIP for further examination due to the length of the overstay. Without AIP, the open work permit will be delayed as well which means even a longer wait time in Canada without working.

Again, it's their call.

 

[MaxLet]

Ok.. This will be complicated, so I hope you guys take some time to give us a hand.

My sister (Canadian and Brazilian Citizen) lives with her boyfriend (Brazilian citizen) for the past 2 years.
They have the apartment lease in both names, text messages historic, tons of photos, friends family and everything else to prove their relationship.

They were going to apply as common-law but have decided to get married before applying for sponsorship.
Here is where things get complicated for the:

She worked for the past 4 years in a big company, but left to get back to university (she is 24 years old). She has good savings, but no paycheck.
HIS student/work visa expired in 2011, He kept working illegally WITH HIS EXPIRED SIN (and therefore paying taxes, but not declaring).

so the questions are:
1) will he be able to stay in Canada during the processing time for the application? considering that he has been living here for the past 3 years, being 2 with her and with apartment and other memberships in both names.

2) Is there such thing as restoring his status within Canada in this case?

3) Is my sister eligible to sponsor him? (considering that she does not receive any support from government or have any criminal record)

4) if he is sent back to Brazil, can he apply for a visitor visa to stay with her during the processing time?

Thank you guys. Appreciate any help.

Hi,
well, I was out of status during the hole process and I havent encounter any problem or delay. (got DM in exactly 1 year now waiting to "land") CIC states that people without of status cannot being refused PR in sponsorship for this reason, but carefull cuz there are a few diferent things in your situation and mine.

1. I came as a student, meet my hubby first day of school, after 5 months dating we move in together, got married a year after. We were 2 years married when I applied for PR base on sponsorship.

2. I lost my status when we were already married for 1 year and a half. In your case, if i understand correctly, he has been out of status for three years and dated this person for 2 years, so 1 year after losing status... that can be a redflag.

3. He had a SIN number and was working.. and still working illegally! That is a crime! he must know that! In my case, i came as only a student, and never worked... even know.. with dm and only waiting for the landing formality, i still not working...! i dont want it to ruin everything as that is in fact a HUGE redflag.

4. There's no way to "restore status". But if they do apply and reach AIP, he will be able to apply for an open work permit. AIP seems to me the hardest part, the evaluate the sponsor and the relationship.

5. They could apply outland as it seem safer for them since he is in a huge problem if they caught him working. But in my case, before applying, i ask call center agents and they suggested me to stay and fight inland.

6. when you apply inland you cannot leave canada. well, you can. but they suggest not to do it. and in his case even worst cuz he will not be allowed to re enter.


hope this helps...!

God bless and good luck.!

 

[steerpike]

IF he leaves voluntarily Canada and apply for a visitor visa to apply inland afterwards with a legal status that sounds like the most reasonable solution. But does the office in Brazil, where he would apply for this visitor visa, would know that he was ever illegal? would that play against him to get this visitor visa?

I dont think CBSA tracks out-going visitors, so they wont know immediately. But when he goes to file his spousal sponsorship app, he is going to have to come clean about what he was doing for those 3 years. His passport stamp will show he went back to Brazil 3 years too late. They also may be able to see that he has been paying taxes in Canada for those 3 years and therefore was working. I dont really know the inner workings of CIC, but you would think they would be able to catch cases like this.

 

[Ponga]

I dont think CBSA tracks out-going visitors, so they wont know immediately. But when he goes to file his spousal sponsorship app, he is going to have to come clean about what he was doing for those 3 years. His passport stamp will show he went back to Brazil 3 years too late. They also may be able to see that he has been paying taxes in Canada for those 3 years and therefore was working. I dont really know the inner workings of CIC, but you would think they would be able to catch cases like this.

Actually, they do track third-country nationals that exit Canada:
http://www.cbsa-asfc.gc.ca/btb-pdf/eefs-dies-eng.html

A fully phased-in Entry/Exit system will help strengthen the integrity of Canada's border and immigration programs by closing the loop on an individual's travel history and will enable the Canada Border Services Agency (CBSA), for the first time, to have information on who has left the country in addition to the currently available information on those entering.

The `Beyond the Border' program is a 4 phase Entry/Exit system, with phase III scheduled for June/July of this year.

As of now, the Beyond The Border Action Plan is currently only applicable at land border ports of entry, however, the CBSA previously told THN (http://www.travelhotnews.com/reportages.php?sequence_no=46821) that, "Canada will develop a system to establish exit...under which airlines will be required to submit their passenger manifest information on outbound international flights."