Options? Is marriage our only hope

[hoping4kiwi]

Hi,
I'm new to posting but have been reading through forum threads for weeks trying to assess where to start with our application.

I am a Canadian citizen and my boyfriend is working in same province under a TFV, LMO. His 2yr visa expires this month and he's applied for an extension. He also has another LMO app for a new place just sent in on Friday. He is hoping to get a new visa in order to live in my area (Calgary area) so that we can live together.

Originally, we were going to apply for sponsorship under conjugal but after 2 calls to CIC and reading on here, our situation doesn't fall under the conjugal status as we first thought it did. He can't live with me due to immigrational barriers - that is accurate! But not the immigration barriers CIC is referring to...

-Anyway, its (disappointingly) okay if his extension is approved, we can still see each other living 6 hrs apart, however we can't qualify as common-law partners to proceed with the sponsorship.

-If his new LMO is approved, we can live together and then proceed with sponsorship after 6 mos or so (correct?)

-And if both are denied, he has to move back to NZ, and then we still don't qualify as conjugal partners under the definition given to me this morning because technically I could move THERE even though we want to live HERE! Please excuse the frustration coming out in my post...

So my question is, since we won't qualify as conjugals if he has to return to NZ, can we marry in Canada with him being a TFW, and what will that do to our options of applying?

(I think at this point, waiting to see if the new LMO will come in, and then proceeding as common-laws is our best option... I don't want to marry for the purpose of being able to live together. Is this naive thinking now that I'm committed to a foreigner? LOL)

Any advice would be appreciated, thank you.

 

[mmhughes]

Sorry hoping4kiwi, I just have a few questions to help me understand your current situation with your boyfriend. Have you been living with each other for a year or more here in Canada? And if he gets his extension could you both live with each other in Canada? Your best bet is to become a common-law couple, whether it is here in Canada or in NZ. And then you need to gather up evidence such as leases, mortgage, bills, combined account, etc. in order to prove that you aren't just housemates but actual lovers who want to spend the rest of theirs lives together.

 

[RobsLuv]

-If his new LMO is approved, we can live together and then proceed with sponsorship after 6 mos or so (correct?)

Nope, you have to co-habitate for at least one continuous year in order to qualify as common-law partners.

-And if both are denied, he has to move back to NZ, and then we still don't qualify as conjugal partners under the definition given to me this morning because technically I could move THERE even though we want to live HERE! Please excuse the frustration coming out in my post...

So my question is, since we won't qualify as conjugals if he has to return to NZ, can we marry in Canada with him being a TFW, and what will that do to our options of applying?

(I think at this point, waiting to see if the new LMO will come in, and then proceeding as common-laws is our best option... I don't want to marry for the purpose of being able to live together. Is this naive thinking now that I'm committed to a foreigner? LOL)

Any advice would be appreciated, thank you.

Honestly, your only option right now for sponsoring him is to get married If you could manage the one year co-habitation, then you'd still have another year (probably) before he got his PR status, and you'd have to figure out how to stay together through that, too, especially if he needs to work.

The biggest problem is that you haven't given yourselves any time to resolve this. Had you already married, you could submit an inland spousal application with an application to extend his status (by open work permit) and he could have continued working where he is working now under the terms of his original work permit until the inland PR application reaches the stage of first assessment and he was approved for an open work permit (9-10 months). The problem with that is that the extension application and the inland spousal PR ap have to be received by the Case Processing Centre BEFORE his original work permit expires . . . and if that's this month, it doesn't really give you enough time to get married and get all the application forms and supporting documentation submitted. That probably would have been your best option to accomplish him being able to remain in Canada and continue working. But now that the extension ap has been submitted, I think you have to just wait that out and see what happens.

The other option is to apply via the outland PR process - still, once you're married - with his application being assessed through the embassy in Sydney. Outland does process a bit quicker than an inland ap would - Sydney is finalizing spousal aps within 8 months, plus another 36 days at CPC-Mississauga to assess you as the sponsor before the case goes overseas. If you apply outland, it won't matter if he's still in Canada or if he has to go back - the application will continue processing uninterrupted (whereas, with an inland ap, he has to remain in Canada and - if his extension isn't approved, that will complicate matters for him).

Wish you'd come here a few months ago when you still had some time to work this through. Right now you're kinda backed up against a wall and your only option for staying together right now is if his work permit is approved. If it is, and you want to try to live together and establish a common-law partnership, you'll have to wait a year to submit the PR ap.

 

[hoping4kiwi]

sure mmhughes, I thought my post might be confusing. Its such a broad question.

We haven't been able to live together because his visa is specifically for Jasper and I live in Calgary. I know, poor us, we live in the same province whereas some couples live countries apart.
The extension won't allow us to live together but the new LMO would.
Yes, I could technically move there (to jasper) to live with him but I own a business and house here and its not that simple. I know that probably sounds weak and selfish but all our circumstances are personal.

So no, we haven't lived together yet, we don't have shared things in both our names yet except for vet bills and pet registration, and we only have photo proof of our relationship at this point. So unless he gets the new visa placing him in Calgary or I give up my business to move to Jasper, we can't live together at this point.

But if we married, could he apply for a different type of work visa? Or would he be unable to work until a sponsorship was approved?

 

[hoping4kiwi]

Thank you. That certainly clarified things for me. Why do we have to live together for 1 yr to be classifed as common-law, when by law in Canada (or in Alberta at least) you are officially common-law after co-habitating for 6 months?

So, please help me understand, if we married in Canada, we could apply Outland and he could continue living AND working here? How soon could he apply for an OWP after marriage? If we married, would his only option for working for any employer be an OWP?
Sorry to be so new to this...

 

[Baloo]

Thank you. That certainly clarified things for me. Why do we have to live together for 1 yr to be classifed as common-law, when by law in Canada (or in Alberta at least) you are officially common-law after co-habitating for 6 months?

So, please help me understand, if we married in Canada, we could apply Outland and he could continue living AND working here? How soon could he apply for an OWP after marriage? If we married, would his only option for working for any employer be an OWP?
Sorry to be so new to this...

CIC - common law.

http://www.cic.gc.ca/english/immigrate/sponsor/spouse-apply-who.asp#common_law

You can apply outland and continue to live here.

Normally if someone applies for spousal outland, they cannot work until they have landed. (others will comment on the impact of doing this with an LMO)

 

[mmhughes]

Firstly - your NZ partner cannot work in Canada legally once he is sponsored (unless he has a working visa of course). When he becomes a Permanent Resident (PR) then he will have nearly the same rights as a Canadian including being allowed to work legally.

Secondly - unfortunatley that is an Albertan law (and I am quite surprized that it is different). In Ontario and Quebec it is 1 year before you are considered common-law so because you are going through Canada I am assuming that Albertan policies won't really matter.

Just a thought...couldn't you live part time with your boyfriend in Jasper and share his lease? Assuming of course he is renting an apartment or house? I would love for a second home in the Rockies! What a great way to escape from the city life of Calgary now and again

And lastly, due to your short timeline your boyfriend's best bet is to extend his working visa because it doesn't sound like you two can prove that you are common-law at this point in time.

 

[mmhughes]

Sorry, just to clarify what I meant by - "And lastly, due to your short timeline your boyfriend's best bet is to extend his working visa because it doesn't sound like you two can prove that you are common-law at this point in time". If you want him to stay in Canada straight away. Going through as a common-law couple or married will take time.

 

[RobsLuv]

Thank you. That certainly clarified things for me. Why do we have to live together for 1 yr to be classifed as common-law, when by law in Canada (or in Alberta at least) you are officially common-law after co-habitating for 6 months?

So, please help me understand, if we married in Canada, we could apply Outland and he could continue living AND working here? How soon could he apply for an OWP after marriage? If we married, would his only option for working for any employer be an OWP?
Sorry to be so new to this...

The criteria for common-law is based on Canada federal case law and is one year of continuous co-habitation. It's not a provincial criteria - CIC goes with the federal.

If you married in Canada - or anywhere else - he is eligible to be sponsored for permanent residence. His ability to work and live in Canada before he is approved for permanent status is dependent on his temporary status - like the work permit he has now. If he is in Canada with a temporary work permit and gets married during the validity of that permit, he's able to apply for permanent status via the spousal inland application process and, as I mentioned, including an extension to his work permit with the inland PR ap (received BEFORE his temporary status expires) allows him to continue in Canada under the terms of his original permit until such time as they complete the first stage of assessment of his PR ap and issue new temporary status. You guys would submit an extension application with the "work permit" option checked, pay the $150 fee, and he'd be able to continue working under his original permit until they assess for first stage and then issue an OWP - which allows him to work for any employer - anywhere in Canada. That would have solved your Calgary/Jasper situation. The good news is that this might be an option for still getting him to Calgary with you - even if the new LMO doesn't come through. There'd be a wait . . . but if his extension is approved, and you get married and submit the inland PR ap with the OWP option, after 9-10 months time he'd be issued an open work permit (even though his current work permit might not have expired yet) and he'd be able to work in Calgary under the new OWP.

The outland application does not allow him to get an OWP. Apart from the issuance of an extension to his current work permit (or the new permit based on the new LMO) he wouldn't have an option to work in Canada simply based on having applied for PR outland. What applying outland does is protect the permanent residence application if he ends up having to leave Canada. An inland PR applicant is required to remain in Canada - even if their temporary status expires. That's why you submit an inland application while temporary status is still valid - and protect that status by including an extension application with the PR ap. If the inland applicant goes out of status, the application is transferred from Vegreville to a local CIC office and that can significantly delay processing. As it is, an inland ap takes 12-18 months to finalize and there is no right of appeal associated with it. An outland ap processing through Sydney, which covers NZ, would be finalized within 8 months and then he'd be able to live and work in Canada. So an outland applicant can be in Canada during processing - and someone in Canada does not HAVE to submit an inland application - but the ability to work is always dependent on the temporary status given when the person entered Canada. In your bf's case - he was given a work permit when he entered Canada. He can only continue working past the expiration of that permit if 1) it's extended (which is what he's applied for now), or 2) if he marries (or qualifies as a common-law partner) before the expiration of the work permit and he applies to extend it in conjuction with an inland application for permanent residence.

Hope that makes things clearer. I know it's a bit confusing, but we can break it down further if it's still not making sense. You can PM me if you like.

 

[RobsLuv]

Here are some excerpts from the CIC Family Class Operations Manual, the inland processing manual, and the IRPA Regulations that pertain to your bf's situation:

From Section 186(u) of the IRPA Regulations:
A foreign national may work in Canada without a work permit
(u) until a decision is made on an application made by them under subsection 201(1), if they have remained in Canada after the expiry of their work permit and they have continued to comply with the conditions set out on the expired work permit, other than the expiry date.

Section 201(1) says: A foreign national may apply for the renewal of their work permit if
(a) the application is made before their work permit expires; and
(b) they have complied with all conditions imposed on their entry into Canada.

The inland processing manual gives this information about submitting extension to temporary status:
Your status in Canada

You must have legal temporary resident status in Canada to remain in the country legally without the possibility of being removed. Having legal temporary resident status means you have a document issued by Citizenship and Immigration, which allows you to remain in Canada for the period of time specified on your visitor document (work permit, study permit) or on your temporary resident permit.

CIC will process your application for permanent residence on a first-come first-served basis. However, we receive large volumes of applications for permanent residence and cannot guarantee that all processing procedures will be completed before your temporary resident status as a visitor, worker, student or permit holder expires.
Your responsibility

It is your responsibility to ensure that your temporary resident status remains valid until you receive permanent resident status. When you leave Canada, you relinquish your temporary resident status and may not be able to return to Canada.
Maintaining legal status in Canada

You have two options available to ensure that your legal temporary status in Canada remains valid until permanent residence is confirmed:

1. You can apply for both an extension of your temporary resident status and permanent resident status at the same time. If you choose this option, complete both an application to extend your status and an application for permanent residence. Be sure to include both applications and all the supporting documents and fees that are required in the same envelope.

Note: The acceptance of your application for temporary resident status does not guarantee the acceptance of your application for permanent residence.

2. You can apply to extend your temporary resident status separately from the application for permanent residence, but you must do so before your temporary status expires. You have legal status for the period of time indicated on your visitor document (work permit, study permit, visitor record) or temporary resident permit.

My note: applying separately does not give implied status to remain while the PR ap is processing IF the extension is denied, because the extension is not being assessed based on the applicant being married to a Canadian - unless evidences were included with the extension application supporting a spousal PR application in process - as when someone with valid status in Canada wants to remain in Canada under the terms of their permit, but applies outland for PR.

There's info on Common-law qualification in Sections 5.34-5.35 of the OP2Processing Manual. You should read through that, and what evidences they require as proof of qualification, so you'll be informed . . . in case his status is extended and you decide to wait, live together, and then apply for his PR as common-law partners.

 

[hoping4kiwi]

Thank you very much RobsLuv!

I will likely PM you after I sort through this info. (If I can figure out how to PM on this forum)


Grateful,
hoping4kiwi

 

[RobsLuv]

OK.

 

[serenifly]

Off topic!

Where abouts in Kiwiland is your bf from?! We had a really really tough choice living here or in New Zealand (Taurranga)

it took us a full year to decide where we wanted to go ... Chose here cuz it has a bit of everything (He can still surf and play beach volleyball etc) I have a good job, so sadly, Money drove our final decision!

Still looking forward to having christmas on the beach in 2011! We're going there for Xmas and New Years (for a month) Can't wait to see his motherland!

 

[BeShoo]

Thank you. That certainly clarified things for me. Why do we have to live together for 1 yr to be classifed as common-law, when by law in Canada (or in Alberta at least) you are officially common-law after co-habitating for 6 months?

According to Wikipedia (http://en.wikipedia.org/wiki/Common-law_marriage#Canada), various laws in various jurisdictions in Canada come into effect after 1, 2, 3, or 5 years together. I don't really know anything about a 6 month period in Alberta, but the only law that matters for this purpose is federal immigration act (IRPA) which requires 12 months of continuous co-habitation.

It's a bit of a long shot and would be hard to prove, but you can technically co-habit without actually living together. See http://www.canadavisa.com/canada-immigration-discussion-board/spousal-sponsorship-t46995.0.html;msg357760#msg357760 and follow the link to Fantin v. Canada.

 

[RobsLuv]

I disagree - because Immigration Canada is very specific in its interpretation of common-law as meaning living together in a marriage like relationship for a period of at least one year. They talk about periods of separation being permissible, but only if they are short. This couple is not in a position to live together at all - unless he gets a new LMO and can work in Calgary . . . and she has made the clear decision not to give up her business or her home to move to Jasper.

There is one exception: conjugal partner qualification when there is an immigration barrier, or fear of persecution that makes it impossible for a couple to live together or to marry.

Not only is there not an immigration barrier in this case - both are living in Canada but, because of financial considerations, choose not to live in the same city - there is no impediment to marriage.