Canada Spouse Visa Highlights

CANADA SIX THINGS TO CONSIDER WHILE APPLYING SPOUSE VISA FROM INSIDE CANADA OR OUTSIDE CANADA

6 things to consider when choosing between in-Canada and out-of-Canada spousal sponsorship

Couples wishing to apply for spousal (or common law) sponsorship are often faced with a dilemma. Should they use the in-Canada method or the out-of-Canada method? Answering this question is not always easy, as a number of factors must be considered. [Please note that, for ease of exposition, most references to ‘spouses’ in this article may be understood as meaning both spouses and common law partners.]

1. Can the foreign spouse or partner enter Canada?

This is the first thing to consider. Are the spouses currently in Canada? If the answer is no, then ask, Is the foreign spouse legally allowed to enter Canada? If the answer to that question is no, then an out-of-Canada application is the only way to go. To submit an in-Canada sponsorship application, both spouses must be currently residing in Canada. If one spouse is unable to enter Canada, then sponsorship Canada can be ruled out.

However, it should be noted that in-Canada sponsorship is not automatically ruled out when the foreign spouse is staying illegally in Canada with the Canadian spouse. Even if the foreign spouse has no status in Canada, an in-Canada sponsorship application may still be possible as long as both spouses are currently residing in Canada.

It should also be noted that even if both spouses reside in Canada, an out-of-Canada application is still possible, as a couple living in Canada can elect to have the application processed overseas.

2. Will one or both spouses be spending a significant period of time outside of Canada while the sponsorship Canada application is being processed?

If the answer is yes, then an in-Canada application may prove difficult. An in-Canada sponsorship application can be submitted if both spouses are currently residing in Canada. However, if the sponsoring spouse is spending most of his or her time living outside of Canada, say for work, then Citizenship and Immigration Canada may take the position that the couple is not actually residing in Canada. Also, if the sponsor is not regularly living with the sponsored person, and the sponsored person is living in Canada, there is a risk that CIC may take the view that the couple is not actually in a genuine relationship.

A couple should also consider whether the spouse being sponsored will have to travel overseas during the period when the sponsorship application is being processed. If that is likely, then an overseas application may be a better choice. While an out-of-Canada application can continue to be processed even if the sponsored spouse is residing overseas, an in-Canada application cannot be processed to completion if the sponsored spouse has left Canada. A short trip outside of Canada may be possible, but there is always the risk that the sponsored spouse may not be let back into Canada.

Many people mistakenly believe that the act of submitting the sponsorship application confers a special status on the sponsored spouse. This is not the case. The sponsored spouse has no special status in Canada simply from being sponsored, and only acquires permanent resident status when the sponsorship application is completed and the foreign spouse is approved for permanent residence. For this reason, a trip outside Canada during the processing of an in-Canada application is particularly risky for a foreign spouse who would otherwise require a visa to enter Canada.

However, even for a foreign spouse who would typically not require a visa to enter Canada, for example, an American spouse, there is always the risk that Canada Border Services Agency officers will refuse to allow re-entry. The fact that visas may not typically be required for citizens of a particular country to enter Canada does not guaranty that CBSA officers will permit entry to Canada for all citizens of that country.

3. What are the different processing times for in-Canada vs. out-of-Canada sponsorship applications?

In some cases overseas sponsorship applications will be much quicker than in-Canada applications. In other cases, the processing times will be about the same or even quicker for in-Canada applications. It is a good idea to check the processing times listed on the Citizenship and Immigration Canada website before choosing between the in-Canada and out-of-Canada options.

When considering processing times, you must consider processing times for both first stage and second stage approvals. For the first stage, CIC is considering the application of the sponsor. When the sponsor is approved in principle, then CIC considers the application of the person being sponsored (the foreign spouse) in the second stage. While first stage processing for out-of-Canada applications is usually fairly short, second stage applications processed through certain overseas visa offices may end up languishing for months or even years.

4. Does the foreign spouse need to be able to work (in Canada) within a short period of time?

If the foreign spouse needs to be able to work within Canada in a relatively short period of time, then an in-Canada application may be the way to go. Currently, CIC has a pilot program that enables many in-Canada sponsored spouses to apply for an open work permit, and to receive that open work permit in as little as 4 months.

While this pilot program is not available to those who apply outside of Canada, it should be noted that the out-of-Canada processing time for a given country may still be relatively short. So even if the spouse wants to begin work in Canada as soon as possible, an in-Canada application is not always the best way to go.

5. Does the couple want the right to appeal? Does the couple want to avoid a “problem” visa office?

With an overseas sponsorship application, the couple maintains the right to appeal a negative decision. This right does not exist in the case of in-Canada applications. However, the spouse may still have the ability to judicially review a negative in-Canada decision.

The right to an appeal process isn’t necessarily beneficial in all circumstances, however. If an application is much more likely to be rejected if processed at a particular visa office, for example, then a couple may wish to use the in-Canada procedure. I’m not sure if there is any publicly available data on this subject, but anecdotally it appears that certain visa offices are more inclined to determine that the relationships being considered are not genuine. I suspect that the in-Canada procedure is much more accepting of relationships than is the overseas procedure when those applications are being processed through, say, the Manila or Hong Kong visa offices.

6. Is either sponsorship process even possible?

For a couple currently living overseas, the only possible application is an out-of-Canada sponsorship. However, for many couples, even an out-of-Canada sponsorship will be possible. If a sponsor cannot demonstrate an intention to reside in Canada, then that person cannot sponsor a spouse for permanent residence.

For example, consider a Canadian citizen spouse who has lived overseas for 20 years. He or she has worked and lived outside of Canada for decades and does not currently own any property in Canada. For such a Canadian citizen spouse who has been long absent from Canada, Citizenship and Immigration Canada would likely be concerned that there would not in fact be a real intention to reside in Canada. The purpose of sponsoring someone for permanent residence is to allow that person to live with you in Canada. If you cannot demonstrate that you intend to live in Canada, CIC will not want to grant your spouse permanent residence, as this will give your spouse access to Canadian social benefits without this person ever contributing to Canadian society or paying Canadian taxes.

If you are living overseas and considering sponsorship, you should consider re-establishing ties to Canada. Some ways to help do this are through seeking employment in Canada, purchasing a home in Canada, or visiting Canada. In you can convince CIC that you have an actual intention to reside in Canada after the sponsorship application is approved, then you stand a much greater chance of having the application approved.

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