Viewing entries tagged
american immigration to canada

5 Things Americans Don’t Know About Immigration Spousal Sponsorship to Canada But Need to Know Before Applying

5 Things Americans Don’t Know About Immigration Spousal Sponsorship to Canada But Need to Know Before Applying

1. You Never Know How Long Your Sponsorship Application Might Take to Be Approved

I’ve seen some spousal sponsorship applications from Americans approved in just four months, while others take over two years. Sometimes this is just variable administrative backlog. Other times it’s because of some peculiar quirk in the application that requires greater government scrutiny. Don’t plan your future personal and professional lives as a couple around some magic guessed at date that Permanent Resident (PR) status in Canada will be granted.

I’ve seen couples plan their finances or children or educations around a magic date that they believe the American will become a Canadian PR, so that they can both work, study and live indefinitely in Canada, with public health care and all the other benefits that come along with being Canadian, only to have those plans dashed because of processing delays. Couples need a backup plan when arranging immigration. What if a PR is never granted? Will you still be a couple?

I’ve seen totally legitimate spousal relationships be questioned by Immigration, Refugees and Citizenship Canada (IRCC), leading to 10 year litigation battles to get the relationship recognized. Some of these battles do ultimately succeed. But they take time. Don’t put your life as a couple permanently on hold, betting on a particular immigration outcome of what is a discretionary process by government. 

An immigration lawyer can advise you if it will be quicker to apply for sponsorship from inside Canada, than through the United States, though IRCC’s increasing electronic moving around of workload among its officers regardless of where they are posted in the world is eroding the great difference that used to exist in processing times depending on point of application. The key to a speedy approval is to get your application as perfect as possible the first time around, so that the whole thing doesn’t get sent back as incomplete requiring going to the back of the line. 

2. Common Law Sponsorship Applications Are Always Challenging & Don’t Even Attempt a Conjugal Relationship Application

My experience with common law spousal sponsorships is that they often can lead to double the approval time as compared to married couples. The legitimacy of your relationship is much more likely to be questioned. You’re much more likely to be called to an interview. This is true even if you already have multiple children together. 

It seems to be a frustrating quirk of traditional society that a single piece of paper signifying a lawful marriage is much better proof to IRCC of a solid relationship than are children and perhaps years of co-habitation. But that’s just the way it is. 

I don’t run marriage prep courses (I was forced to take one prior to my own marriage, but at 25 years and counting maybe it did so some good), and definitely don’t offer relationship counselling. However as an immigration lawyer I always tell my couple clients who want to be a couple together forever in Canada: get married! If you’ve got some huge moral opposition to marriage, fair enough, stick with the common law route. But from most of my unmarried couple clients I don’t get much push back. For them marriage just hasn’t been a priority, but they aren’t anti-marriage. Which I why I explain marriage may be the quickest way for them to be together in Canada. 

Because a common law spousal sponsorship application requires 12 months of continuous co-habitation, you’re open to challenge by the iRCC on any break in that co-habitation, even if you’ve got a good reason for the break. With marriage, you don’t have to have even lived for a day together. Arranged marriages where the couple has spent very little time together are just fine. The key is the marriage.

Some of my clients have seen the Conjugal Relationship spousal sponsorship category listed online, and believe it to be a cure all to their lack of marriage, and lack of co-habitation. It isn’t, and is almost guaranteed to fail. I’ve not yet dug into its policy origins, but suspect the conjugal relationship category exists at least in part as a hold over from when same sex couples could not get married prior to immigration, and weren’t able to qualify as common law for whatever reason (perhaps because one couldn’t get a visa for Canada). In theory some of these Conjugal Relationship applications might be granted, but personally I’ve never seen one succeed. My solution remains: get married. 

3. A Single Criminal Conviction Can Render You Criminally Inadmissible for a Sponsorship Application

It doesn’t matter how far it might be in your past. Or how minor it might have seemed at the time. If you’ve got a criminal conviction anywhere in the United States (or anywhere else), Canada might find you to be criminally inadmissible, which can wreck your prospects for spousal sponsorship. 

Very, very, very important is to not accidentally lie on your sponsorship application about past convictions, because then you can be hit with the double whammy of criminal inadmissibility and a misrepresentation finding. It doesn’t matter if you have a pardon, or expungement, or whatever term they use where the conviction happened. Canada’s questions on sponsorship applications now ask if you’ve ever been arrested or ever been charged; you aren’t just asked about convictions. 

Criminal rehabilitation may be possible for you depending on when the conviction happened and its equivalent severity under Canadian law (not under the US Federal or state law contravened). You will need to plan that out how to address admissibility problems long before you submit your spousal sponsorship application.

Be proactive, not reactive, as it can take a lot of time to track down all the state and federal documents you might need from the US to seek rehabilitation in Canada, including digging into some very old dusty courthouse files. The best proactive approach is to produce every last detail of court records, not just a computer printout of the conviction.

4. Work Permits Can Be Very Hard To Obtain Until Almost the End of the Spousal Sponsorship Process 

While you’ll see there’s talk on the IRCC’s website about an open work permit being available to the sponsored spouse after approval in principle of the spousal sponsorship application, sometimes this approval in principle comes only a month or two at most before final approval when you’d get a work permit anyway. So don’t think that it could take only a few months to be working in Canada after you’ve submitted your initial application.

As the sponsored American spouse, you need to either plan to stay working in the United States while the sponsorship application is underway should you need that income to support yourself (and perhaps your Canadian spouse), or figure out how to forego any income in Canada if here on visitor status and waiting out the approval process perhaps for quite a long time, or get a work permit in Canada that is available to foreign workers, perhaps through a NAFTA visa if you are in a high skilled profession since Americans and Mexicans remains in a favoured position to work in Canada over most other nationalities because of the North American Free Trade Agreement. 

I’ve seen couples bet their lives on both of them being able to quickly work at any job in Canada, perhaps because the Canadian is pregnant and needs the financial and moral support of the American in Canada, or because they both really want to live in the same place but each is only qualified to work in their home country and they can’t afford to support themselves as a couple without a double income. You may need to make a choice between only one of you working for a year or two, or living apart for the same period of time (and don’t try a common law application if you’re doing that) while approval in principle of the sponsorship application and an open work permit is achieved. 

5. It’s Safest During the Sponsorship Process to Never Leave Canada

It doesn’t matter that Americans have always had favoured status in entering Canada. A single Border Service Officer (BSO) has the right to refuse you entry to Canada if you’re not already a permanent resident or citizen. Entry is a privilege. Not a right. Even if you’ve got paperwork authorizing entry, a BSO can cancel it. Just like that.

So say you’ve been in Canada for months living with your beloved, and decide just to pop back across the US border for the day to pick up a few groceries - especially those yummy American breakfast cereals you miss and have been scouring Canadian grocery stores for in vain. Imagine the shock when you get back to the Canadian border and they tell you you aren’t welcome!

You plead with them. You cry a bit. All you’ve got with you is your wallet, a somewhat worn sweater, and a borrowed vehicle. Your whole life is in Canada now. 

Well, you might get stuck waiting out the next year in the US while your spousal sponsorship application works its way through the system. Seriously.

This trap is especially likely if you’ve been crossing and recrossing the border too many times in recent months. The CBSA start to not like letting Americans in as normal visitors after too many crossings, even if you prove it’s just to visit your one and only. They start to demand proof of your financial support. Dig into whether you’ve got anything in your background they don’t like. They might even accuse you of illegal work in Canada. The sorts of things non-Americans need to put up with all the time when they apply to visas to come to Canada. 

So don’t get caught out. If you’re an American with a Canadian spouse, and want to wait out the spousal sponsorship process - however long it may take - in that mythical land of the Great White North, don’t leave Canada for any destination unless you absolutely have to. And if you do leave, don’t bet on being let back in. 

Yes, it’s likely you’ll probably be okay upon your return to Canada. But I’ve had multiple clients stuck in exactly this kind of excluded limbo situation after merely a day’s shopping trip to those southern malls that really are oh so much better than the retail experiences of Canada. After a big fight, we’re often able to get them back into Canada. But why risk it. There’s always, after all. 

Gordon S. Campbell is a Canadian immigration lawyer who helps Americans immigrate to Canada as permanent residents as well as for work and study purposes. He especially works with Americans to overcome criminal or medical inadmissibility issues for entry to Canada.