Urgent Plz Help Wrongful Refusal to My SOWP

[Neaea]

Hi guys,

I'm super infurated by IRCC today. My SOWP was applied under SCLPC in August this year and I got the refusal letter this morning. The reason IRCC gave me is that I was out of status. But I came to Canada on TRV in April and granted 6 months visitor status. I guess it was because of my old study permit which expired in January this year and mistakenly uploaded by my agent. But I have clearly put my day of entry as April on my SOWP application form and fyi I left Canada to gather my immigration documents in Jan before my old WP expired. As long as the IRCC officer had taken a look into my SOWP form, they would have found that I didn't enter Canada with that expired WP and my status in Canada is visitor.

I'm so upset about this and confused about what actions to take. I don't want to let it go but I can't find a way to make complaint or legal actions against IRCC over negligence. Please help me out guys.

 

[Naturgrl]

Hi guys,

I'm super infurated by IRCC today. My SOWP was applied under SCLPC in August this year and I got the refusal letter this morning. The reason IRCC gave me is that I was out of status. But I came to Canada on TRV in April and granted 6 months visitor status. I guess it was because of my old study permit which expired in January this year and mistakenly uploaded by my agent. But I have clearly put my day of entry as April on my SOWP application form and fyi I left Canada to gather my immigration documents in Jan before my old WP expired. As long as the IRCC officer had taken a look into my SOWP form, they would have found that I didn't enter Canada with that expired WP and my status in Canada is visitor.

I'm so upset about this and confused about what actions to take. I don't want to let it go but I can't find a way to make complaint or legal actions against IRCC over negligence. Please help me out guys.

So if you came in April, when did you extend status and apply for a visitor record? If you didn’t, you have been out of status for months as you can only stay up to 6 months. Applying for SOWP in August didn’t maintain your status.

 

[Neaea]

So if you came in April, when did you extend status and apply for a visitor record? If you didn’t, you have been out of status for months as you can only stay up to 6 months. Applying for SOWP in August didn’t maintain your status.

Sorry I'm kinda confused. Since this SWOP is only for applicants inland and the process time is unclear. If it didn't grant us maintained status, how can we remain inland while waiting for this WP meant for inland applicant? Plus when we are applying for it, it only asks whether we valid status at the point of submission, not whether it will remain valid valid for a certain period of time. Applicants whose status expiring within 2 weeks are even eligible to apply without AOR. So I don't think it's the case you brought up here.

 

[armoured]

Sorry I'm kinda confused. Since this SWOP is only for applicants inland and the process time is unclear. If it didn't grant us maintained status, how can we remain inland while waiting for this WP meant for inland applicant? Plus when we are applying for it, it only asks whether we valid status at the point of submission, not whether it will remain valid valid for a certain period of time. Applicants whose status expiring within 2 weeks are even eligible to apply without AOR. So I don't think it's the case you brought up here.

She could and should have simply applied to extend visitor status, I believe.

Not an expert on this, but my understanding is that while your spouse could apply while still in status, they should have applied to extend the visitor status - and that would have given the implied status you refer to (while waiting for the answer on the visitor status extension). If they did not, then out of status.

They may still be able to apply for restoration of status - don't know for certain, but think the deadline for that is 90 days (from expiry of previous status).

[I'm not clear who is writing and who is asking. Whatever pronouns I"m using just mean the principal applicant.]

 

[Neaea]

She could and should have simply applied to extend visitor status, I believe.

Not an expert on this, but my understanding is that while your spouse could apply while still in status, they should have applied to extend the visitor status - and that would have given the implied status you refer to (while waiting for the answer on the visitor status extension). If they did not, then out of status.

They may still be able to apply for restoration of status - don't know for certain, but think the deadline for that is 90 days (from expiry of previous status).

[I'm not clear who is writing and who is asking. Whatever pronouns I"m using just mean the principal applicant.]

Thank you for your reply.

It's kinda weird that an application to work permit doesn't give maintained status cuz it usually does to people whose work/study permits expire during their waiting. There is no place mentioning anything about extending your status while waiting for the decision since extension is not guaranteed right? More importantly, IRCC only asks if you have status when you are applying, not for another 3-5 months. If extension is never guarateed, it makes no sense to only require valid status at the moment of applying.

 

[Naturgrl]

Thank you for your reply.

It's kinda weird that an application to work permit doesn't give maintained status cuz it usually does to people whose work/study permits expire during their waiting. There is no place mentioning anything about extending your status while waiting for the decision since extension is not guaranteed right? More importantly, IRCC only asks if you have status when you are applying, not for another 3-5 months. If extension is never guarateed, it makes no sense to only require valid status at the moment of applying.

Applying for SOWP doesn’t maintain status if you entered as a visitor. It is a separate application and process so would not be tied to SOWP application. It is up to you not IRCC to understand the rules. IRCC is not at fault. You are out of status, and status needs to be restored. So apply ASAP to maintain visitor status.

 

[Neaea]

Applying for SOWP doesn’t maintain status if you entered as a visitor. It is a separate application and process so would not be tied to SOWP application. It is up to you not IRCC to understand the rules. IRCC is not at fault. You are out of status, and status needs to be restored. So apply ASAP to maintain visitor status.

Thank you for your reply. But it doesn't make sense. Both foreign worker and visitor status are temporary resident status, not to mention SCLPC wp is only inland applicants. Why are they separate? How can I "remain" an inland applicant if visitor status extension is not guaranteed and maintained status is not granted. On the refusal letter, it says I should leave Canada on the day I receive it. But if I didn't have maintained status, why would they assume that I was in Canada?

All that aside, I haven't found anything mentioned on IRCC website that I have to be in valid status AFTER applying for SCLPC wp. So could you please share any page or source you've seen about it? Thank you so much

 

[Neaea]

Applying for SOWP doesn’t maintain status if you entered as a visitor. It is a separate application and process so would not be tied to SOWP application. It is up to you not IRCC to understand the rules. IRCC is not at fault. You are out of status, and status needs to be restored. So apply ASAP to maintain visitor status.

One more thing since you brought up separate applications. Extension of visitor status is not guarateed. So if I didn't get my extenison approved, that would automatically disqualify me for the SCLPC WP. Therefore, if it's the case you put here, a completely separate application will decide the approval or eligibility of my wp application. Isn't that contradictory?

 

[Naturgrl]

Thank you for your reply. But it doesn't make sense. Both foreign worker and visitor status are temporary resident status, not to mention SCLPC wp is only inland applicants. Why are they separate? How can I "remain" an inland applicant if visitor status extension is not guaranteed and maintained status is not granted. On the refusal letter, it says I should leave Canada on the day I receive it. But if I didn't have maintained status, why would they assume that I was in Canada?

All that aside, I haven't found anything mentioned on IRCC website that I have to be in valid status AFTER applying for SCLPC wp. So could you please share any page or source you've seen about it? Thank you so much

So you have been given a removal order? You applied inland so IRCC knows where you are. All you had to do was apply to extend stay as visitor prior to around October (don’t know date of entry) and you would have maintained status. When you applied for WP, you had status as a visitor but when IRCC opened file to review in October or after, it showed that you were out of status. Therefore rightly refused.

You have bigger issues if you have been told to leave Canada immediately. May want to retain an immigration lawyer.

 

[armoured]

You have bigger issues if you have been told to leave Canada immediately. May want to retain an immigration lawyer.

I believe the removal order with language to leave immediately is standard, should be possible to apply to extend without departing.

But lawyer suggestion is a good one.

 

[armoured]

Thank you for your reply. But it doesn't make sense. Both foreign worker and visitor status are temporary resident status, not to mention SCLPC wp is only inland applicants. Why are they separate? How can I "remain" an inland applicant if visitor status extension is not guaranteed and maintained status is not granted. On the refusal letter, it says I should leave Canada on the day I receive it. But if I didn't have maintained status, why would they assume that I was in Canada?

All that aside, I haven't found anything mentioned on IRCC website that I have to be in valid status AFTER applying for SCLPC wp. So could you please share any page or source you've seen about it? Thank you so much

I don't know where you looked but a couple minutes on internet seems to make it pretty clear that when work permit expires, you need to convert it to a different status:
https://ircc.canada.ca/english/helpcentre/answer.asp?qnum=943&top=25

The onus is on you to maintain the correct status, not anyone to tell you.

That said:
-there's a clear public policy that for those out of status, they will effectively suspend the removal part while the spousal application is processed (I don't know if that's considered implied status, or rather whether that status has the same permissions/meaning as 'implied status'). You can look that up separately.
-that status - whatever it's called formally - does NOT mean that the individual is eligible for work permit under the (spousal) open work permit.

Note there are specific instructions here:
https://www.canada.ca/en/immigration-refugees-citizenship/services/immigrate-canada/family-sponsorship/spouse-partner-children/spouse-common-law-partner-canada-open-work-permit.html

You 'must have retained your temporary resident status or have applied for and are eligible for restoration of your status.'

If the applicant is still eligible for restoration of status, I read that as saying can be eligible, so do this now.

If not, the applicant will have to wait until approval in principle: (response if one clicks on no valid temporary resident status - "If your permanent residence application is being processed under the spousal public policy, you must wait until you’ve received your approval in principle letter to be eligible to apply for an open work permit.")

If this is beyond you or you feel you have the basis for a suit against IRCC for whatever as you declared above, do engage a lawyer. (Hint on the latter part: you don't, the error is almost certainly yours, and you will waste a lot of money trying, but by all means, have at it.)

 

[thanhtam23]

you can maintain your status if you apply to extend/renew your current permit/visitor record
apply for SOWP as visitor does not give you maintained status unfortunately, below are some scenarios for your reference

visitor > visitor record = maintained
CWP > OWP => maintained
CWP > renew CWP => maintained
visitor > OWP => not maintained

you should have applied for visitor record to maintain your visitor status, now that your application is refused you can either wait for AIP or restore your status to reapply

 

[Neaea]

I don't know where you looked but a couple minutes on internet seems to make it pretty clear that when work permit expires, you need to convert it to a different status:
https://ircc.canada.ca/english/helpcentre/answer.asp?qnum=943&top=25

The onus is on you to maintain the correct status, not anyone to tell you.

That said:
-there's a clear public policy that for those out of status, they will effectively suspend the removal part while the spousal application is processed (I don't know if that's considered implied status, or rather whether that status has the same permissions/meaning as 'implied status'). You can look that up separately.
-that status - whatever it's called formally - does NOT mean that the individual is eligible for work permit under the (spousal) open work permit.

Note there are specific instructions here:
https://www.canada.ca/en/immigration-refugees-citizenship/services/immigrate-canada/family-sponsorship/spouse-partner-children/spouse-common-law-partner-canada-open-work-permit.html

You 'must have retained your temporary resident status or have applied for and are eligible for restoration of your status.'

If the applicant is still eligible for restoration of status, I read that as saying can be eligible, so do this now.

If not, the applicant will have to wait until approval in principle: (response if one clicks on no valid temporary resident status - "If your permanent residence application is being processed under the spousal public policy, you must wait until you’ve received your approval in principle letter to be eligible to apply for an open work permit.")

If this is beyond you or you feel you have the basis for a suit against IRCC for whatever as you declared above, do engage a lawyer. (Hint on the latter part: you don't, the error is almost certainly yours, and you will waste a lot of money trying, but by all means, have at it.)

Thank you so much for your detailed explanation. But I guess I wasn't clear enough about my situation. When I applied for my OWP, I had valid visitor status and given the link you put there which was also the one I used for application, there are only two categories: applicants with valid status when applying and applicant without status. I was the former and I applied with AOR. On that page, there's no info about what we should do after applying.
The work permit I had was irrelevant, I didn't came to Canada with that work permit this time since it was already expired months before my entry lol.

 

[Neaea]

you can maintain your status if you apply to extend/renew your current permit/visitor record
apply for SOWP as visitor does not give you maintained status unfortunately, below are some scenarios for your reference

visitor > visitor record = maintained
CWP > OWP => maintained
CWP > renew CWP => maintained
visitor > OWP => not maintained

you should have applied for visitor record to maintain your visitor status, now that your application is refused you can either wait for AIP or restore your status to reapply

Thank you so much. Do you have any source or webpage link about it? Cuz I also saw someone on the forum say if we apply for OWP, we will have maintained visitor status.

 

[thanhtam23]

i try to find an official source but unfortunately there is none, above is my conclusion based on various sources

regardless, you don’t have the choice to appeal this decision either so i don’t think there is anything else that you can do