Out Of stauts please I need your Help!!!

[Bryson Tiller]

Hi everyone,This is my situation..I came here on a student visa and came with my girlfriend from Africa who i truly love(She came on a student visa too around the same time)We have been together for 7 years(Cohabiting) and we have been living in Canada for 6years now.Unfortunately i did not manage to get through after my second semester due to financial reasons.2yrs ago my study permit expired and have been out of status since then.She graduated and is on a post grad work permit and she finally got a job in the right "NOC"Which she has been working for 3 months now.She has supported me through out my stay but i really feel helpless because i cant work and would like to give and support her too.and the the wait for her to get her PR and then pass it on to me is killing me and again we are not even sure it will be granted to her after she applies because its never a guarantee with these things.I went to a lawyer and she advised that my girlfriend should not state during her PR application that im with her otherwise her application would get denied because she cannot claim someone who is out of status.This has really affected the way our relationship is going,we really have those is "it worth it moments".But i would like some professional advise on what someone would do in this case?(I thought of going back home to wait till she is about to apply and so we can submit together but again its not a guarantee she will get it".My other concern is if i did leave her to marry a canadian woman(If our relationship failed),wouldnt that just be considered for sure as trying to stay in the country?I would really like some help.Thanks.

 

[Ponga]

Hi everyone,This is my situation..I came here on a student visa and came with my girlfriend from Africa who i truly love(She came on a student visa too around the same time)We have been together for 7 years(Cohabiting) and we have been living in Canada for 6years now.Unfortunately i did not manage to get through after my second semester due to financial reasons.2yrs ago my study permit expired and have been out of status since then.She graduated and is on a post grad work permit and she finally got a job in the right "NOC"Which she has been working for 3 months now.She has supported me through out my stay but i really feel helpless because i cant work and would like to give and support her too.and the the wait for her to get her PR and then pass it on to me is killing me and again we are not even sure it will be granted to her after she applies because its never a guarantee with these things.I went to a lawyer and she advised that my girlfriend should not state during her PR application that im with her otherwise her application would get denied because she cannot claim someone who is out of status.This has really affected the way our relationship is going,we really have those is "it worth it moments".But i would like some professional advise on what someone would do in this case?(I thought of going back home to wait till she is about to apply and so we can submit together but again its not a guarantee she will get it".My other concern is if i did leave her to marry a canadian woman(If our relationship failed),wouldnt that just be considered for sure as trying to stay in the country?I would really like some help.Thanks.

Your lawyer is dead wrong about this.

If your common-law partner (which is what she is...NOT just your girlfriend) doesn't include you in her PR application, she will NEVER be able to sponsor you...EVER! She cannot land as a PR, pretending to be `single', when in fact she has [you] as her common-law partner, status or no status.


And the fact that you're even thinking about leaving her and marrying a Canadian woman, if your relationship fails...SCREAMS marriage of convenience if you were to go down that path!


You have a real mess of a situation, but if the two of you decide that you really do want to stay together, you'll find a way through this...together!

Good luck!

 

[Bryson Tiller]

@ponga thanks for the reply..My Lawyer worked as an immigration officer for 25years so i thought id trust her word i guess she was wrongShe said id put my girlfriends application at risk because of my status.And at this point in time things are on the rocks for us because she wants to have kids and everything that i cant afford to give her because of my situation so i dont blame her if she ends up leaving me and thats why i said "if my relationship failed"..so i guess there is nothing i can do?

 

[deweysmith]

Your lawyer is dead wrong about this.

If your common-law partner (which is what she is...NOT just your girlfriend) doesn't include you in her PR application, she will NEVER be able to sponsor you...EVER! She cannot land as a PR, pretending to be `single', when in fact she has [you] as her common-law partner, status or no status.

I wouldn't say dead wrong at all.

She must include him as her common-law partner, but she need not (and maybe should not, I don't know) state that he is living with her presently. I think this is what the lawyer meant.

Common-law remains if you are not presently living together as long as you have provably lived together for at least 12 months.

My advice to you, Bryson, (remembering that I am not a lawyer) would be for your girlfriend to continue her PR application (with you listed as her common-law partner, of course) and for you to go home and get a job for a little while. After her PR is approved, you could apply for a sponsorship, and apply for a visitor visa at the same time so you can come back and wait for your sponsorship application and PR to be approved. This would get you a speedier turnaround time on your sponsorship since it would be Outland, and would lower risk for both of you since you are no longer out of status.

It's a long shot, but…

 

[Rob_TO]

I wouldn't say dead wrong at all.

She must include him as her common-law partner, but she need not (and maybe should not, I don't know) state that he is living with her presently. I think this is what the lawyer meant.

Common-law remains if you are not presently living together as long as you have provably lived together for at least 12 months.

My advice to you, Bryson, (remembering that I am not a lawyer) would be for your girlfriend to continue her PR application (with you listed as her common-law partner, of course) and for you to go home and get a job for a little while. After her PR is approved, you could apply for a sponsorship, and apply for a visitor visa at the same time so you can come back and wait for your sponsorship application and PR to be approved. This would get you a speedier turnaround time on your sponsorship since it would be Outland, and would lower risk for both of you since you are no longer out of status.

It's a long shot, but...

That's not how the system works. If he is listed as a common-law partner on her application (which she must do), then he must also get police checks, medicals, etc and both would get PR status together. He would not need to be sponsored later.

Also during her PR application, they must each list their address history. So if they are living together in Canada at the time, then that is what needs to be put on the PR app. Also he will need to indicate he is currently out-of-status. To lie about any of these facts, would be misrepresentation/fraud.

I would also ditch that lawyer as despite her supposed long experience she sounds horrible in recommending to commit misrepresentation.

 

[Bryson Tiller]

Really appreciate all your responses guys.So @Rob would you suggest i stay in Canada until next year(June)When she will be able to apply for the PR and then leave the country right before we submit so i can be listed as "in status" or would it be wise to stay in Canada during the whole application process as "out of status"?And if you could kindly recommend some names of good lawyers around the Toronto area who are really good at their job id be more than greatful?

 

[Rob_TO]

Really appreciate all your responses guys.So @ Rob would you suggest i stay in Canada until next year(June)When she will be able to apply for the PR and then leave the country right before we submit so i can be listed as "in status" or would it be wise to stay in Canada during the whole application process as "out of status"?And if you could kindly recommend some names of good lawyers around the Toronto area who are really good at their job id be more than greatful?

As far as I know, whether you are here with legal status or with no status, shouldn't have any impact on her own PR app. As her declared partner CIC will be more interested in your common-law status, police and medical results. So I don't think it matters if you stay here or not during the process.

Just be aware that since you are out of status, you are subject to removal from Canada if CBSA learns of your status issue and decides to start the deportation process. Sounds like they aren't aware of you know, but after she submits a PR app with you listed as common-law partner and being out of status, they may become aware of you after that. So you may be forced to leave Canada at some time if you don't leave voluntarily before.

And sorry but I don't have any experience dealing with lawyers so can't recommend any.

 

[Bryson Tiller]

@Rob really helpful.But doesnt common law stop if "I leave the country" then meaning we are no longer in a common law relationship isn't it?and wouldnt the application be better if we were married.also another thing my lawyer said was that the rules for applying as an experience class worker have changed since Jan 2015 and that my partner would need a labour market opinion including the right "Noc" job position?she got us confused because we thought just the right "Noc"would get the or?please correct me if I'm wrong?

 

[deweysmith]

@ Rob really helpful.But doesnt common law stop if "I leave the country" then meaning we are no longer in a common law relationship isn't it?and wouldnt the application be better if we were married.also another thing my lawyer said was that the rules for applying as an experience class worker have changed since Jan 2015 and that my partner would need a labour market opinion including the right "Noc" job position?she got us confused because we thought just the right "Noc"would get the or?please correct me if I'm wrong?

Common-law doesn't change if you no longer live together, unless you want it to. Common-law starts after living together for a year or having a child together, and ends when you say it ended. My wife was registered as common-law with her ex for several months without realizing it, and had to sign a solemn declaration that ended the relationship retroactively. As long as you can prove that your relationship is ongoing and genuine (phone bills, Skype logs, etc,) the fact that you are separated will have no effect.

 

[Ponga]

Common-law doesn't change if you no longer live together, unless you want it to. Common-law starts after living together for a year or having a child together, and ends when you say it ended.

What is your source for that?

AFAIK, Canada immigration doesn't waive the required one full year of cohabiting even if the couple has a child together. It would, however, eliminate the Conditon:51 for an applicant that was not Common-Law for more than 2 years with his/her sponsor (meaning have lived together for 3 years or more) at the time that CIC receives the sponsorship application.

 

[Rob_TO]

@ Rob really helpful.But doesnt common law stop if "I leave the country" then meaning we are no longer in a common law relationship isn't it?and wouldnt the application be better if we were married.also another thing my lawyer said was that the rules for applying as an experience class worker have changed since Jan 2015 and that my partner would need a labour market opinion including the right "Noc" job position?she got us confused because we thought just the right "Noc"would get the or?please correct me if I'm wrong?

Once you've cohabited 12 months together to establish common-law, you can then live apart during the application processing if you want. See here: http://www.cic.gc.ca/english/resources/manuals/op/op02-eng.pdf
5.36. How can someone in Canada sponsor a common-law partner from outside Canada when
the definition says “is cohabiting”?
According to case law, the definition of common-law partner should be read as “an individual who
is (ordinarily) cohabiting”. After the one year period of cohabitation has been established, the
partners may live apart for periods of time without legally breaking the cohabitation.

And since this is the family sponsorship forum, any questions you have on CEC class PR apps you should ask here instead: http://www.canadavisa.com/canada-immigration-discussion-board/canadian-experience-class-b52.0/

 

[Rob_TO]

Common-law doesn't change if you no longer live together, unless you want it to. Common-law starts after living together for a year or having a child together, and ends when you say it ended.

Having a child together only makes you common-law for CRA tax purposes. That has absolutely nothing to do with CIC or immigration, in which the only way to common-law is 12 months of cohabitation regardless of any children together.

 

[Ponga]

Once you've cohabited 12 months together to establish common-law, you can then live apart during the application processing if you want. See here: http://www.cic.gc.ca/english/resources/manuals/op/op02-eng.pdf
5.36. How can someone in Canada sponsor a common-law partner from outside Canada when
the definition says “is cohabiting”?
According to case law, the definition of common-law partner should be read as “an individual who
is (ordinarily) cohabiting”. After the one year period of cohabitation has been established, the
partners may live apart for periods of time without legally breaking the cohabitation.

And since this is the family sponsorship forum, any questions you have on CEC class PR apps you should ask here instead: http://www.canadavisa.com/canada-immigration-discussion-board/canadian-experience-class-b52.0/

Could CIC be any more vague about that?! That statement would certainly seem to imply that the couple must also continue to cohabit, for periods of time.

IMHO, their choice of language to say "...for periods of time", may not translate to include a big chunk of time (like 6 months, or more).

 

[Rob_TO]

Could CIC be any more vague about that?! That statement would certainly seem to imply that the couple must also continue to cohabit, for periods of time.

IMHO, their choice of language to say "...for periods of time", may not translate to include a big chunk of time (like 6 months, or more).

I think it's generally accepted that you may live apart for as long as it takes to process the PR application... be it a few months or a couple of years.

Imagine the case where a PR establishes common-law in another country with their partner, who is unable to get a TRV to Canada. CIC rules would force the PR to return to reside in Canada during entire processing, but would not allow the partner to join. So there would be no cohabitation possible during this time no matter how long it takes.

 

[Ponga]

I think it's generally accepted that you may live apart for as long as it takes to process the PR application... be it a few months or a couple of years.

Imagine the case where a PR establishes common-law in another country with their partner, who is unable to get a TRV to Canada. CIC rules would force the PR to return to reside in Canada during entire processing, but would not allow the partner to join. So there would be no cohabitation possible during this time no matter how long it takes.

Excellent point!

I guess the real question is...what, if anything, would CIC have to say about a couple that simply `chose' to be separated (physically) during the entire sponsorship process. Would they be as understanding?