Love without Borders: Spousal Sponsorship Applications – Part 2

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Zeynab Ziaie is a graduate of the Faculty of Law at the University of Toronto and a lawyer licensed to practice in Ontario and New York. Her legal practice focuses on immigration and business law. She often works with clients to find suitable solutions in complex immigration and citizenship cases and represents clients at all levels of court. She can be reached at zeynab@ziaielaw.com.

Last week I explained who can sponsor their spouse, partner or dependent child and defined who qualifies to be sponsored. But how does the process work? Where must an application be submitted?

 

In-land vs Out of Canada Sponsorship Application?

Out of Canada Sponsorship Application: you can generally apply to sponsor your spouse or partner who is living outside of Canada with a sponsorship application that is processed outside of Canada at the visa office that serves your spouse’s country of original or legal residence. This is referred to as an out of Canada or outland application. In these cases, once the application is submitted and passes the first level of processing we can apply for a visitor visa for the spouse to join you in Canada until the processing of your application is complete.

 

In-land Sponsorship Application: when you and the spouse you want to sponsor are both in Canada you will be able to submit an in-land sponsorship application. Your spouse or partner must be in Canada legally with you as a worker, student or visitor, it is possible to apply to sponsor him or her with an in-land application.

 

Often times the main difference between these two types of application was the processing time. In-land applications typically took longer to process. Because of this, if your spouse is a student or visitor in Canada and you have submitted an in-land sponsorship application, you can apply for an open-work permit for your spouse to allow him or her to work while the sponsorship application is under process. The processing times of applications outside of Canada are determined by the visa office where they are processed. There are great discrepancies between processing times at different visa offices. In December 2016 the Liberal government made an announcement promising to reduce processing times in these types of application and to process in-land and out of Canada applications in a similar time frame.

The visa post that will process your spouse’s application outside of Canada is determined by your spouse’s country of origin or country of legal residence. For example, an Iranian citizen living in Iran will be processed by the Ankara visa office. However, an Iranian citizen studying in the UK with a valid visa can elect to have his or her application processed by the London visa office.

In all applications, after general eligibility is established, officers try to determine whether the relationship is genuine. The forms and required documents for proving your relationship have been updated (and continue to change on a regular basis). To have a successful application you must provide complete information and copious documents to demonstrate that your relationship is genuine. Officers are trained and have experience to recognize and understand national, local and religious customs and traditions. That is not to say that cases which do not follow cultural norms are not accepted, but they must be very well documented and presented in order to convince the officer that the relationship is genuine.

 

Complicated Cases

While many spousal sponsorship cases may be straightforward, things can become complicated very quickly. Here are some examples of such cases where the advice of a knowledgeable lawyer can make a great difference to the outcome of your application:

  1. Canada does not have a “fiancé visa” and if you are intended, engaged or betrothed to someone you will not be able to sponsor them until you are in a relationship defined in immigration law. However, your relationship does not have to be a marriage for you to qualify to sponsor if we can prove that your relationship falls under the definition of “common-law partnership” or “conjugal partner” (as explained in my article last week).
  2. There are also some relationships that are recognized as legal in other countries but are not legal in Canada and are unacceptable for Canadian immigration purposes. For example, the age of marriage and the number of married partners. Specifically, polygamy is not recognized under Canadian law and as such a person cannot sponsor a second spouse while they are already married. Often times people may not even be aware of the problem until their application encounters problems. I have seen numerous tricky cases in this area where the laws of other countries allow a person to be remarried before his divorce to his first spouse is finalized. If such a person applies to sponsor his new wife, she will not qualify because he was not eligible to marry someone at the time that he married her.
  3. As I previously explained, if you are a permanent resident and not yet a Citizen, you must be present in Canada when you apply to sponsor your spouse and dependent child(ren). Things can be complicated if you are a permanent resident and cannot leave your child abroad while you remain in Canada to submit a sponsorship application for your child. In these cases we work closely with the parents to find a solution which is based on the specific circumstances of the family.

 

Overall, as officers are highly alert to the possibility of fraud, submitting a complete application is critical to ensure success and to avoid unnecessary delays. Small errors in the application forms or translation of documents can cause delays and lack of evidence regarding to the genuineness of the relationship can lead to your application being refused. Seeking out an experienced lawyer to review your circumstances and advise you with regards to the laws and regulations can help overcome the obstacles in your way and assist you in becoming reunited with your loved ones sooner.

 

Excluded Family Members

In order for you to be able to apply for permanent residence for the person (or people) you are trying to sponsor, the principal applicant and any dependents must be assessed and must not be inadmissible to Canada. For example, if you are applying to sponsor your wife and dependent child, you must have previously declared them both in your own application for immigration and they must be both assessed in the new application. Next week I will be writing about the potential risk of having an inadmissible family member if full disclosure was not made in your previous application and the plight of excluded family members.

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