By
Andy Semotiuk

Proposed Changes To The Spousal Sponsorship System

February 3, 2015

US and Canadian Immigration lawyer Andy Semotiuk: Citizenship and Immigration Canada (CIC) recently announced open work permits for spouses of Canadian citizens and permanent residents seeking to remain in Canada. The announcement declared:

Eligible spouses or common-law partners will now have the opportunity to work in Canada while they wait for their application for permanent residence to be processed.

Citizenship and Immigration Canada (CIC) will issue open work permits to certain spouses or common-law partners who are applying for permanent residence from inside Canada, before the approval in principle decision on their application is made.

In a program delivery update, CIC added the following details:

Applicants who have already submitted an application for permanent residence under the [spouse or common-law partner in Canada] SCLPC class but have not yet applied for an open work permit should complete an Application … and submit it to the Case Processing Centre in Vegreville … CIC will begin issuing open work permits to eligible applicants in the current SCLPC inventory.

SCLPC applicants whose permanent resident applications are received after December 22, 2014 will have their application for an open work permit processed within four months of receipt of their work permit application.

Sounds pretty reasonable. In before the deadline? You’ll be processed first. In after the deadline? Cool your heels for four months.

But that’s not what’s happening. Here’s why:Suppose you came to Canada as a foreign spouse before December 22nd, 2014, and filed an internal spousal sponsorship application so you can stay permanently. A few problems immediately arise.

Problem 1: How long will the application take?According to current processing times, it will take 17 months before the matter is approved “in principle,” or from the time when the spouse was first able to apply for a work permit.Klaudios Mustakas, the former head of CIC enforcement, raised the issue of this delay in a few of his blogs talking about spousal sponsorship cases. He argued that “it is time to change the Canadian spousal sponsorship system so that it is fair to everyone.” Indeed, of all the issues CIC needs to address, the most pressing has to be the long processing times for immigrants, particularly spouses.

Problem 2: What should be done about the visitor status of a foreign spouse once the application for permanent residence is filed?Compared to foreign spouses, temporary foreign workers and students have it easy. It is relatively painless for them to extend their visas, as a request for a renewal of their status is sufficient to keep them in so-called “implied status” until the new visa is approved. If the application is indeed approved, then a new visa is issued. If not, then the applicant is required to leave Canada and the “implied status” is revoked.
But this policy does not apply to internal applications for foreign spouses. According to Canadian immigration officials our firm spoke with, a foreign spouse with a sponsorship application in process does not enjoy implied status and therefore will not be eligible to obtain a work permit for 17 months.Put another way, to apply for a work permit under the new program, you must maintain valid immigration status. Filing your spousal application does not automatically give you that. So even though such spouses will not be denied permanent residence in 25 months, they will be denied work permits until 17 months have passed and their application has been approved “in principle.”
Only then will they be able to submit an application for a work permit. Based on current processing times, they will receive it four months later. In other words, such a foreign spouse is destined to wait 21 months for a work permit. I don’t know about you, but I could not survive waiting 21 months for permission to work.Problem 3: Fees

Suppose someone applied for a work permit before December 22nd, 2014, as part of a spousal application. The fee at that time was $150. Unfortunately, the fee has now gone up to $155. In theory, such an application would have to be rejected due to the shortage in payment.Indeed, according to the advice now being provided by immigration call centres, such work permit applications will be rejected. However, there is some anecdotal evidence to the effect that in some of these cases, depending on the officer processing the case, the work permit applications are being approved. This is incredibly unfair.

A lock-in date should have been set. Those applications that were sent in before that lock-in date should be approved even if they are short on the payment.

A Risky Option

For those spouses who a) have filed an internal spousal sponsorship and have fallen out of status while waiting for approval and b) now want to apply for a work permit under the new program, there is one other option. They could exit Canada and enter as a visitor.

However, there is no assurance that Canadian border officials will allow that spouse to re-enter, even if they are from a visa exempt country like the United States. The official could take the position that the exit of that spouse from Canada was inconsistent with an internal application and for this reason that application is deemed abandoned. This risk is so real that seasoned immigration practitioners counsel against taking it.

What Changes Should Be Made?

Klaudios Mustakas sums it up nicely. Assuming there are no criminal or medical problems with a spousal application:

If the spouse of a foreign student studying in Canada can get an immediate work permit, why should the spouse of a Canadian citizen not be able to get one? It does not make sense to deny a foreign spouse a work permit if that spouse is in Canada and is the object of an internal sponsorship.

Further, if an applicant provides a marriage certificate from a credible source, there is no reason why that foreign spouse should be delayed in coming to Canada. Such a spouse should be approved quickly – certainly no longer than necessary to do a police and medical clearance. Later, that couple will have to satisfy immigration officials that they lived together in Canada in a genuine marriage for two years to remove the condition on their permanent status. Otherwise the foreign spouse will have to leave Canada. That provides a means of control over fraudulent marriages.

It would seem that Canada could change its policy in dealing with foreign spouses reasonably easily and eliminate the hardship which Canadians and their immigrant spouses face. It can only be hoped that political leaders will see the clear advantages of doing so.

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