Archive for March 20th, 2012

CIC Imposes Five-Year Waiting Period for Sponsored Spouses and Common-Law Partners

Henry Chang | March 20, 2012 in Canadian Immigration | Comments (0)

On March 2, 2012, the Government of Canada announced a regulatory change that now requires sponsored spouses or common-law partners to wait five years from the day that they are granted permanent residence status in Canada before they can sponsor a new spouse or partner. The objective of this change is to discourage immigration fraud in spouse/common-law partner family class cases.

There is admittedly a reasonable argument to be made in favor of such a requirement. Until this regulatory change, a sponsored spouse or common-law partner arriving in Canada as a permanent resident could leave their sponsor and sponsor another spouse or partner themselves, while their original sponsor was still financially responsible for them for up to three years. However, the imposition of a five-year bar may be a bit excessive.

A Canadian citizen or permanent resident who sponsors a spouse or common-law partner is normally subject to a legally enforceable affidavit of support, for a period of three years. Although it may be logical to impose a bar on the sponsored immigrant’s ability to sponsor a different spouse or common-law partner for a period of time, a three-year bar that runs parallel to the original sponsor’s three-year financial obligation would have been more appropriate.

In any event, the regulations now impose a sponsorship bar of five years. The proposal was pre-published in the Canada Gazette on April 2, 2011, and was open for a 30-day public comment period. The regulatory change officially came in to force on March 2, 2012, but was not formally published in the Canada Gazette until March 14, 2012. The regulatory amendment, as published in the Canada Gazette, appears here.

CIC Proposes Conditional Permanent Residence to Discourage Marriage Fraud

Henry Chang | in Canadian Immigration | Comments (0)

On March 9, 2012, Jason Kenney, the Minister of Citizenship, Immigration and Multiculturalism announced additional measures to discourage marriage fraud. The proposed regulatory change was published in the Canada Gazette on March 10, 2012, and is available here.

Under the new proposal, conditional permanent resident status would apply to all spouses in relationships of two years or less who have no children with their sponsor at the time of the sponsorship application. A spouse or common-law partner who is granted conditional permanent resident status would be required to live with their sponsor in a legitimate relationship for two years following the receipt of permanent resident status. If this did not occur, the sponsored spouse or common law partner’s conditional permanent resident status could be revoked. For all legitimate relationships, the condition would cease to apply once the conditional period elapsed.

Given concerns about the vulnerability of spouses and partners who are in abusive relationships, the proposed condition would cease to apply in instances where there is evidence of abuse or neglect by the sponsor, or of a failure by the sponsor to protect from abuse or neglect by another person related to the sponsor (whether that person is residing in the household or not) during the conditional period. Evidence that the sponsored spouse or partner was cohabiting in a conjugal relationship with their sponsor until the cohabitation ceased as a result of the abuse or neglect would also be required. The exception would apply in cases where the abuse or neglect occurred during the conditional period and was directed towards the sponsored spouse or partner, a child of either the sponsor or the sponsored spouse or partner, or a person related to either the sponsor or the sponsored spouse or partner who was habitually residing in their household.

The condition would also cease to apply where there is evidence that the sponsor has died while the sponsored person is still subject to the condition and that the sponsored spouse or partner had cohabited in a conjugal relationship with the sponsor up until the time of the sponsor’s death.

The above proposal is modeled, to some extent, after United States immigration law. In the United States, where a United States citizen or lawful permanent resident sponsors his or her immigrant spouse, based on a marriage that is less than two years old at the time that the spouse acquires lawful permanent residence, the immigrant spouse is given conditional permanent resident status for two years. Unlike the Canadian proposal, this condition applies regardless of whether there are children from the relationship.

Within 90 days of the second anniversary of the immigrant spouse’s receipt of permanent residence, the sponsor and the immigrant spouse must jointly file a petition to remove the condition and establish that they are living together as husband and wife. There is also a procedure to apply for a waiver of the condition in cases of: (a) extreme hardship to the immigrant spouse, (b) good faith termination of the marriage, (c) a battered spouse or child, and (d) death of the U.S. citizen or permanent resident sponsor.

Although the Canadian Government’s desire to discourage immigration fraud is not unreasonable, the current Canadian proposal is problematic for a number of reasons:

  1. It does not clearly state whether spouses and common-law partners who are subject to the condition will be required to formally apply to have the condition removed or whether it will automatically occur in the absence of a marital breakdown. A requirement to file a formal application would increase the workload of immigration officers and create added bureaucracy.
  2. Unlike the U.S. model, the Canadian proposal does not consider a good faith termination of the marriage. In other words, it does not contemplate a termination of the marriage due to no fault of the sponsored spouse or common-law partner. The absence of such an exception places sponsored spouses and common-law partners at the mercy of their sponsors, who may use the threat of divorce proceedings to exert undue influence over them.
  3. No guidelines have been provided regarding what evidence of abuse or neglect will be required in order to terminate the condition. Many abused spouses do not actually report the other spouse’s conduct to the authorities, which can make it difficult to establish abuse or neglect. In addition, uncertainty regarding whether an immigration officer will actually find abuse or neglect in a particular case may discourage immigrant spouses and common-law partners from ending these harmful relationships.

Before imposing conditional permanent resident status on sponsored spouses and common-law partners, the implications of such a requirement should be carefully considered to ensure that abused or neglected individuals are not subjected to unnecessary hardship.

CIC’s Come to Canada Wizard Helps to Assess Immigration Eligibility

Henry Chang | in Canadian Immigration | Comments (0)

Approximately seven months ago, Citizenship and Immigration Canada (“CIC”) launched its Come to Canada Wizard (the “Wizard”). According to CIC, the Wizard has recorded more than 750,000 visits since that time. CIC also claims that close to 90% of users who tried the Wizard said that they would recommend it to someone they know.

The Wizard is essentially an interactive website. It presents users with a series of questions designed to determine which federal immigration option best suits their specific circumstances. It then leads users through the application steps and provides the necessary instructions and forms.

The Wizard is a useful tool for prospective visitors, students, temporary workers, and permanent residents. However, it is still not a substitute for formal legal advice.

One important shortcoming of the Wizard is the fact that it assesses only eligibility under the federal immigration categories. It fails to assess a prospective applicant’s eligibility to immigrate under the Quebec Immigration Program or one of the available Provincial Nominee Programs. These programs are often (but not always) preferable to seeking permanent residence under one of the federal categories.

Despite its limitations, the Wizard may be useful in preventing deceptive practices employed by unscrupulous immigration representatives. Foreign nationals who have been told that they are eligible under a particular federal immigration category can use the Wizard to verify whether they are actually eligible for the immigration benefit that they seek.