Seeking guidance on potential violation of visa while waiting for PR

[QCB]

Hi All,

[This was posted in the international student section as well, but since some issue overlap with our on-going PR application I have decided to post here as well!)

I have a rather complex issue that I was hoping to seek guidance on.

I'm a Canadian citizen (Naturalized 2006) and currently sponsoring my wife for PR (She entered the country June 2014 as visitor and has since applied and was granted with an visitor visa extension, which expired Mid June 2015.(However, we believe she is still in-status as we submitted applications for study permit and Spousal PR Open work permit, of which the OWP is still pending). We submitted our application in Nov 2014 and haven't heard anything since. Also to note that we are living together and also raising a baby together!

She had been accepted to a masters program which runs from June 2015 to April 2016. We submitted the study permit application and open work permit applications in March. However, it was our mistake that we sent it to CPC Vegreville which is not appropriate as she already lives in Canada. In addition, we did no pay the sufficient funds as we paid 255 but in fact open work permit and study permit together costs 355. As a result, we received a letter this week with the entire application saying the study permit has been refused. However, my wife has already begun school.

The way I see it we have a few options:
1. Cease school immediately, wait for the status of the work permit. If denied then apply for restoration of visitor status within 90 days, if approved then we are okay as she will be in-status as a holder of a work permit.
2. Apply ASAP to CIC office in Los Angles for study permit and either continue/pause study in the meantime. Once study permit obtained can exit canada and re-enter as a student
3. Continue to stay in school (violation of visitor visa)

Which is the best option for us?

For option 2, realizing that it would be applying for a program which has already started, will this mean that its likely the application will be rejected?

For option 3, what are the implication of this on our spousal application which is in progress?

Thank you for reading, and in advance for any guidance/experience you share!

 

[rambopg]

This is out of my scope, but I will give another advice. If it seems complicated. Consult a good/reputable immigration lawyer/consultant.

 

[scylla]

She definitely needs to stop attending school immediately since she's studying illegally (she should not have started her studies until she had the study permit officially approved). Schools are now required to regularly report on the status of international students to CIC. So it won't take long for them to figure out that something is amiss. She may have a PR application in progress - but this may not stop CIC going after her for violating the terms of her visit.

I'm a little confused by what you mean by "spousal open work permit". She doesn't qualify for a SOWP (assuming you're using the term correctly). A SOWP is something that is granted to spouses of individuals who are in Canada as foreign students or foreign workers (since you are a Canadian citizen - she doesn't qualify). Maybe you're referring to a regular OWP? Can you provide more details about what you have applied for? Did you apply for PR using the inland process and include an open work permit along with this application? Or did you apply for PR outland?

 

[QCB]

Thanks Scylla.

The Open Work Permit we applied for is the new one specifically for our situation (spouse in the process of waiting on PR, applied inland and living in Canada). This applciation for OWP was sent in March 2015, not along with our PR app in Nov 2014.
search [Inland Spousal Sponsorship: Canada Offers Open Work Permits To Spouses Awaiting Immigration To Canada - in google]

She definitely needs to stop attending school immediately since she's studying illegally (she should not have started her studies until she had the study permit officially approved). Schools are now required to regularly report on the status of international students to CIC. So it won't take long for them to figure out that something is amiss. She may have a PR application in progress - but this may not stop CIC going after her for violating the terms of her visit.

I'm a little confused by what you mean by "spousal open work permit". She doesn't qualify for a SOWP (assuming you're using the term correctly). A SOWP is something that is granted to spouses of individuals who are in Canada as foreign students or foreign workers (since you are a Canadian citizen - she doesn't qualify). Maybe you're referring to a regular OWP? Can you provide more details about what you have applied for? Did you apply for PR using the inland process and include an open work permit along with this application? Or did you apply for PR outland?

 

[scylla]

Submitting the OWP on its own doesn't give you implied status or keep you in status in Canada. It would be different if the OWP had been submitted along with the inland application.

If her visitor visa ran out in June and her study permit has now been refused - she is out of status in Canada (unless there's somthing I'm missing). She needs to apply to restore her status back to visitor as a start.

Hopefully others will comment and confirm or correct.

 

[SchnookoLoly]

Scylla's understanding is how I read it as well. She's out of status and needs to apply for restoration of status before anything else happens, and she needs to stop studying immediately.

 

[QCB]

Thanks everyone.

We will proceed to withdraw from the study program and look to restore her visitor status as suggested.

 

[Harju]

Submitting the OWP on its own doesn't give you implied status or keep you in status in Canada. It would be different if the OWP had been submitted along with the inland application.

If her visitor visa ran out in June and her study permit has now been refused - she is out of status in Canada (unless there's somthing I'm missing). She needs to apply to restore her status back to visitor as a start.

Hopefully others will comment and confirm or correct.

The inland PR application was submitted in November 2014 before the OWP pilot program was in effect. According to the instructions at:

http://www.cic.gc.ca/english/resources/tools/updates/2014/2014-12-22.asp

Effective December 22, 2014, Citizenship and Immigration Canada (CIC) will commence issuing open work permits to certain spouse or common-law partner in Canada class (SCLPC) applicants before the approval in principle decision is made.

Applicants who have already submitted an application for permanent residence under the SCLPC class but have not yet applied for an open work permit should complete an Application to Change Conditions, Extend my Stay or Remain in Canada as a Worker (PDF, KB) (PDF, 447.94 KB) form [IMM 5710], include the appropriate fee, indicating that they are applying for an open work permit, and submit it to the Case Processing Centre in Vegreville, at the following address:

I agree that she needs to stop studying but the OWP was not refused. What am I missing? Why doesn't she have implied status pending outcome of the OWP?

 

[QCB]

@Harju we are a bit confused as well!

The guidance on the CIC website re: implied status does not clearly state whether our situation fall under it.

A temporary resident must apply to extend their period of authorized stay before it ends. If they have done so, their period of authorized stay as a temporary resident is extended by law until a decision is made [R183(5)]. Such a person is considered to have implied status as a temporary resident during that period.

If a temporary resident applies for renewal of their work or study permit and their permit expires before a decision is made, R186(u) and R189 (the right to continue working or studying under the same conditions pending a determination of their application for renewal) apply only as long as the person remains in Canada.

So I get it that if one is a visitor and applied to extend their status as a visitor they would have implied status while they wait fro that extension app. In our case she's a visitor but is waiting for application on the open work permit, does that give her implied status? I think it does as the OPW permit is another form of temporary resident status so by way of applying for it we are seeking to extend her status as temp resident.

We have an appointment with an immigration lawyer later today and will post their response here so as to clarify for everyone!

 

[QCB]

Just an updated on our status:

We met with an immigration lawyer who confirmed the following:
1. Application for Work permit constitutes as an implied status

2. It is not recommended to exit and re-enter the country while waiting for in-land spousal PR. As the risk of being denied entry/the Port of entry officer referring your information to CIC would be too much.


Also happy to report that my wife has received her OWP in the mail so she is in-status for the next two years while awaiting PR!