Married, should we apply for visitor extension??

[CanK]

Hi there,

I have a question. My husbands visitor Visa expires in August. We just got married last week Our plan is to apply for PR as soon as we have all the required documents which will take a month or two.

Should he apply to extend his visitor visa to by us some time before we send in our application? Will him being out of status cause us trouble when we apply if he doesn't extend.

NOTE:Last time he entered he was given three months and immigration told him an extension would not be granted so we don't expect him to be approved just want to keep him in "good standing" while we get our application together.

Any help/advice would be greatly appreciated.

 

[CharlieD10]

Apply for the extension. It is every visitor's responsibility to maintain their legal status in Canada, even with a PR application in process. Until he is issued a decision, he has implied status. Be aware that if it is denied he will be required to leave Canada immediately, as he would no longer have status.

 

[CanK]

Sorry, I understood that we have implied status once we are in the PR application process.

Is it correct that if he is denied even if we have applyed he will have to leave?

 

[OhCanadiana]

Sorry, I understood that we have implied status once we are in the PR application process.

Based on?

Is it correct that if he is denied even if we have applyed he will have to leave?

If he is denied he won't have legal status in Canada anymore.

The details matter a lot in this case - are you applying inland or outland? What is his nationality? If you give us a bit more info we can try to help you out a bit more...

 

[CanK]

Everything I've read so far had stated that while in the PR application process a spouse can be here without status.

We are applying inland. He is Irish.

Thanks for the help.

 

[kandc]

I don't think he has implied status just because your app is in process. May I ask where you read that?

My husband is from the US. I flew down there in June and we drove back up together. When we crossed the border, we had to pay a bond and go through hours of grief just to get him into the country, even though we had our application ready to send and had already paid the fees (we were just waiting on his police check to arrive). We finally got that yesterday and are mailing the app today. He has to go back to the border on Saturday, at which point we must show proof that our app has been filed (I'm hoping a proof of delivery is enough) and THEN the border officer will decide whether he is allowed to stay in the country or not. They do have every right to throw him out, even though our app has been sent.

So I wouldn't rely on that implied-status-if-you've-sent-in-your-app idea unless you get confirmation FROM an officer that it's true.

 

[CanK]

I've read and been advised here many times that we could go this route. Also on the CIC website it says:

"You can apply as a sponsor if your spouse, common-law or conjugal partner, or accompanying dependent children live with you in Canada, even if they do not have legal status in Canada. However, all the other requirements must be met."

Am I missing something?

 

[Creampop]

http://www.cic.gc.ca/english/information/applications/guides/5289ETOC.asp

Applying for permanent residence from within Canada: Spouse or common-law partner in Canada class

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.

This does not mean that they can't ask him to leave or even deport him. It just means they can't use the fact that he doesn't have valid status as a reason to deny his application. If you do not extend his visitor visa and he is asked to leave and he doesn't and gets deported it will make the process worse...

 

[OhCanadiana]

I've read and been advised here many times that we could go this route. Also on the CIC website it says:

"You can apply as a sponsor if your spouse, common-law or conjugal partner, or accompanying dependent children live with you in Canada, even if they do not have legal status in Canada. However, all the other requirements must be met."

Am I missing something?

It sounds like you may be confusing implied status with an exception which allows CIC to approve inland spousal PR applications even if a spouse "does not have legal status" in Canada.

Implied status means that if you make an application (within certain timeframes to extend certain statuses while you are within Canada), your legal status is extended until a decision is made on your application. So, for example, if you apply to extend a temporary resident visa before the status expires, the applicant will have implied status until a decision is taken on whether or not the extension is granted. Therefore, they are still in Canada legally without having overstayed their approved stay until the decision is taken on the extension. You can see details on this at http://www.cic.gc.ca/english/visit/extend-stay.asp#implied

IP-8 explains that certain exceptions are granted for family reunification under "Public Policy Under 25(1) of IRPA to Facilitate Processing in accordance with the Regulations of the Spouse or Common-law Partner in Canada Class" including for example:

(i) allowing a PR visa to be issued even if the applicant lacks legal immigration status in Canada

"This means that spouses or common-law partners in Canada, regardless of their immigration
status, are now able to apply for permanent residence from within Canada in accordance with the
same criteria as members of the Spouse or Common-law Partner in Canada class."

(ii) administrative deferral of removal in certain cases

"Under the spousal policy, many clients can benefit from an administrative deferral of removal if
there is evidence that they have a pending spousal application by the time they are deemed
removal-ready by the CBSA. In general, the date that the CPC-V has locked in the application is
the proof that an application has been made."

Take a look at Section 5.27 of IP-8 for an overview (bolding mine), for full details see Appendix H:

"5.27. Legal temporary resident status in Canada[b]
Under the current Regulations, applicants in this spouse or common-law partner in Canada class
must have a valid temporary resident status on the date of application and on the date they
receive permanent resident status to be eligible to be members of the class.
However, under the spousal policy, applicants who lack status as defined under the public policy
(see “What is lack of status under the public policy” below) may be granted permanent residence
so long as they meet all the other requirements of the class (i.e., they are not inadmissible for
reasons other than “lack of status.”)
However, applicants who do not have temporary resident status and who cannot be granted
positive consideration under the public policy can be removed at any time.[/b] Further, the spousal
policy does not change the requirement to seek necessary authorization to visit Canada or to
work or study here.
What is “lack of status” under the public policy?
For the purposes of the current public policy, persons with a “lack of status” refers to those in the
following situations:
• persons who have overstayed a visa, visitor record, work permit, student permit or temporary
resident permit;
• persons who have worked or studied without being authorized to do so as prescribed by the
Act;
• persons who have entered Canada without a visa or other document required by the
Regulations;
• persons who have entered Canada without a valid passport or travel document (provided
valid documents are acquired by the time CIC seeks to grant permanent residence).
IP 8 Spouse or Common-law partner in Canada Class
2006-10-16 22
• persons who did not present themselves for examination when initially entering Canada but
who did so subsequently.
Lack of status” does not refer to any other inadmissibilities including, but not limited to:
• failure to obtain any required permission to enter Canada after being removed;
• persons who have entered Canada with a fraudulent or improperly obtained passport, travel
document or visa and who have used the document for misrepresentation under IRPA. For
greater certainty, persons will be excluded from being granted permanent residence under
this public policy:
♦ if they used a fraudulent or improperly obtained passport, travel document or visa to gain
entry into Canada; and
♦ if this document was not surrendered or seized upon arrival; and
♦ if the applicant used these fraudulent or improperly obtained documents to acquire
temporary or permanent resident status.
Other cases may be refused for misrepresentation if there is clear evidence of misrepresentation
under IRPA, in accordance with the Department’s guidelines.
See Appendix H for the full text of the spousal public policy."
Source:  http://www.cic.gc.ca/english/resources/manuals/ip/ip08-eng.pdf

 

[OhCanadiana]

To finish the thought, as I said in my prior post:

"The details matter a lot in this case - are you applying inland or outland? What is his nationality? If you give us a bit more info we can try to help you out a bit more..."

Also, depending on the complexity of your case (and what you are comfortable revealing online), you may want to consider consulting a lawyer or immigration consultant who can guide you through the specifics and ensure your application is solid for the requirements you are trying to meet.

 

[CanK]

Thanks again.

So from what I understand it is better to apply for the extension and then while he has the "implied status" apply for PR and hope for the best as he will most likely be out of status while we are in the process?

As per the request for further details: He is Irish. He came as a visitor and meet me. After 6 months he extended his visa. After one year we left the country for 2 weeks to go to Ireland. We re-entered and at that point immigration gave him a hard time. In the end they gave him 3 more months but claimed he would not be able to extend if he tried again.

We have since gotten married with the intention of applying inland. His visa is up in August. We can't apply for PR yet because we are waiting on all the documents.

 

[CharlieD10]

I realize you want him to remain in Canada, but why Inland? You can still apply via London and you would likely have his PR by the time Vegreville gets around to assessing him for approval in principle (first stage approval, takes 11 months currently). London's longest time is 7 months (80% of cases completed by that time).

Additionally, if you apply Inland and he is refused an extension, he will have to leave Canada and his Inland application will be forfeit, and you'll have to apply for him Outland anyways. Regardless of whether he gets the extension to remain or not, an Outland application via London will be safe because processing continues no matter where he is.

 

[CanK]

I guess inland because we've already been forced to put things on hold for the long enough. ie: not knowing if he could stay or would have to go. We spent a long time looking at the options and decided inland because to me seven months long distance isn't really something I want to consder. I'm ready to get our lives together started!

I'd like to keep his status legal if we can. When he applies for extension will it help if we state that we plan to apply for spousal sponsorship in the next month or two?

 

[CharlieD10]

Given he's already been warned and only given 3 months to stay, it might help, but it might not. It's better to have some kind of proof, like actually paying the fees and getting a receipt so you can attach that to the extension request.

Like I said, he doesn't have to be outside Canada to get an Outland application processed, so you wouldn't necessarily be apart just because you apply Outland. Furthermore, starting your life is going to be put on hold for 11 months at Vegreville, there's no two ways about that timeline. With London there is the possibility it could be done before the maximum average time of 7 months, and he would be a PR by the time they opened the file at Vegreville.

Additionally, in your situation, an Outland application would be a safeguard. If he MUST leave Canada, his application is safe.

 

[OhCanadiana]

Some additional food for thought:

1. As CharlieD10 pointed out, outland is usually faster than inland and London is one of the fastest offices. So you can compare:
Inland: step 1: 11 months + step 2: 8 months = 19 months
Outland: step 1: 3 months + step 2: 2-7months = 5 - 10 months

Of the cases London completed in 2011, 20% of cases were completed within 2 months, 30% in 3 mo., 50% in 4 mo., 70% in 5 mo., 80% in 7 mo.

2. Just to clarify, you can apply outland even if he is in Canada when you apply.

3. There are several people on the forum who have extended their stay multiple times after applying so it is possible - they usually submit proof of the application in process. Is there any chance you can pull your application together before you need to apply for the extension so you can prove you've mailed it (incl. paying fees and submitting undertaking)? Especially given his last entry, you want your application to be as robust as possible to maximize your chances of getting the extension.

4. The fact that he's Irish and visa exempt has 2 implications (advantages):
- You will not need to take (mail) his passport to the Visa Office to get a visa once he's approved, you will just need to mail them a photocopy and they will mail you the CoPR.
- Even if the extension is denied and he has to leave, he could travel back to Canada after a trip to the US (or back to Ireland) without needing to apply for a visa. Of course, he'd still need to show ties to Ireland to convince the border officers he wouldn't overstay if his visit expired before he got the PR (as he did this last time).

5. There's a few other tradeoffs between inland or outland to consider:
- Outland he can't work or study in Canada until he has PR status (likely 5-10 months after you apply); inland he can't get a work permit until after step 1 is completed (11 months)
- Outland you can appeal the decision - rarely necessary, but a good option to have
- Outland he's free to travel; inland if he leaves Canada (even if it's for a family emergency or unforseen event) and is not allowed back in to Canada his application will be considered abandoned and you'll have to submit a new application outland.

Good luck as you decide how to proceed

ETA: having a slash in the additional version of this made it almost impossible to post so avoid slashes in posts!