ႈImmigration ဆိုင္ရာမ်ား

Last week, I chatted with two senior officials of the U.S. Consulate in Toronto about my recent urgent application for a visitor visa on behalf of a Canadian permanent resident whose mother was in intensive care in the U.S. following a serious car accident.
Some of the following is what I learned from Consul Jeffrey Tunis and Public Affairs Officer Nicholas J. Giaccobe.
Although Canadian citizens don’t need visas to visit the U.S., many foreigners, including Canadian permanent residents, do depending on their country of nationality.
Applications for these visas are strictly by appointment only, regardless of how urgent the situation. Appointments must be booked online using the consulates’ Visa Appointment Reservation System at www.nvars.com.
Appointments are not always available, and when they are, they are often several weeks away and too far into the future to be of any use. At the time of this writing, no appointments were available for the next six weeks.
Understandably, my client wanted to be at his mothers’ side now, not in weeks.
I was directed by consular staff to its emergency instructions on its website at http://toronto.usconsulate.gov but, frankly, I had quite a bit of trouble finding them. For those in need, they can be found by clicking “Visa Info” on the top blue bar and then “Visa FAQs” at the bottom of the yellow section on the left.
The consulate instructs individuals in such situations to select any appointment available online regardless of how far away it is in time. The applicant will need a passport number and pay $9 to book the appointment. The system will give them a reference number.
Applicants must then send an e-mail to TRTNIV@state.govrequesting an urgent appointment and must provide all the information specified in the FAQ. An automated response will be generated. However, a case-specific one will usually follow within a day or two with an earlier date, if the request is granted.
Examples of what constitutes a legitimate emergency are listed in the FAQ but both Tunis and Giaccobe stressed the circumstances contemplated are those that are “unforeseen.” Applicants who waited till the last minute to apply for a visa to attend a wedding in the U.S. will probably have to settle for a piece of frozen wedding cake brought back by a caring guest who did make it to the event.
Same day visas are simply out of the question because procedures implemented since 9/11 require certain security screenings, including facial recognition checks, to be done in the U.S.
Hopefully, you’ll never need this service. But if you do, perhaps this will help.

A recent Federal Court case confirms that the immigration department is deliberately making it much more difficult for qualified immigrants who were deported from Canada to ever return here legally.

The department’s approach is intended to discourage illegal immigration and to foster greater respect for our immigration laws. However, this new approach will only achieve the opposite effect.

When a person is subject to a deportation order they can never return here unless they first obtain an Authorization to Return to Canada (“ARC”) in addition to obtaining whatever temporary or permanent visa they may require. It has been my experience that if a visa officer concludes that an applicant otherwise qualifies for an immigrant visa (i.e. they have the necessary points etc. to qualify for our skilled worker category) then an ARC would be issued so that the person can be landed.

In more than 21 years of practice I can’t remember even a handful of individuals, if that, who qualified for permanent immigration but only to be denied an ARC. Until just recently, I have never been asked by a visa officer for legal submissions to support a request for an ARC. Provided that the client pays the $400 government fee and provided that there is no criminal or medical inadmissibility issues involved, getting an ARC has always been fairly routine business.

Not anymore.

In January, CIC updated the ARC policy in its operational manual. The manual now informs our immigration officers that the ARC requirement “is intended to send a strong message” and should not be used as a “routine way” to overcome the bar to admission created by a removal order.

Now applicants bear the burden of persuading an immigration officer that “compelling or exceptional circumstances” exist to justify a recommendation for an ARC. A program manager, deputy program manager, or operations manager must then approve the officer’s recommendation.

This requirement will clearly make it much more difficult for those who were removed from Canada, whether they paid for their own removal or not, to ever return here -- either temporarily or permanently, even if they otherwise meet all of the other requirements under our immigration laws.

In June, the Federal Court heard the case of Gurbhagwant and Preetkiran Khakh who came to Canada illegally in 2003 to make a refugee claim. Their claim did not lack credibility. It was simply refused because the IRB found that the couple could have sought refuge in other parts of India. While still in Canada, the Khakhs were nominated by Prince Edward Island for permanent residency under its Provincial Nominee Program. Although the Khakhs left Canada in March 2006 in compliance with their removal orders, their immigration application that had the backing of PEI was refused in May 2007 when the visa officer could not find any “compelling or exceptional” reasons to recommend an ARC.

It is clear that immigration lawyers and consultants must now inform their clients who are under removal orders that if they leave Canada there is a serious risk that they will never be allowed to return here even if they meet all of our immigration requirements.

No doubt, many will simply decide to take their chances here …underground.

One would think that foreigners in this situation would be given an incentive to go home and do things legally.

However, this ill-advised policy will undoubtedly have the opposite effect.

Poor Deca Lesmond.
In 2001, she came to Canada with her daughter and the child’s father
While in Canada, Deca’s partner was abusive with her and in 2003 he was arrested and placed on a protection order. In March 2006 he was deported to St. Lucia, all-the-while blaming Deca for his misfortunes and threatening to “get her” when she returned home. Citing her fear of her ex-partner, Deca made a refugee claim here in August 2006.
The Immigration and Refugee Board accepted the truth of the essential facts of her case. In particular, the Board accepted that not only was Deca abused in Canada but that she was also abused by her ex-partner prior to coming here.
Nonetheless, the Board denied her asylum claim.
The Board resorted to the often-used ground for refusal: “delay.”
The Board felt that Deca’s actions were not “consistent with the actions of a person with a subjective fear of persecution.” It reasoned that she obviously knew how to turn to Canadian authorities for protection from her husband when he abused her here, and since she was being abused by him prior to their arrival here, she should have advanced her claim as soon as she arrived in Canada.
The Board expects that a person with a genuine fear of persecution will immediately seek asylum immediately upon arrival here. Board members often reason that a person who doesn’t do so is obviously not in genuine fear.
Any lawyer who practices in this field knows this not to be the case for several reasons.
Firstly, many genuine claimants are afraid to make a claim at the airport since they believe that they will be sent back on the very same plane on which they arrived. They prefer to enter Canada, get away from the airport, and seek trustworthy guidance before approaching authorities.
Secondly, when people are in genuine fear, they will avoid anything that creates the possibility that they might be returned to the place where they face danger. If they make it to Canada without incident, they will often remain underground for years without making a claim. They know that making a successful claim only has, statistically speaking, about a 50 per cent chance of success and, of course, a 50 per cent chance of refusal. They feel that it is safer to remain underground than it is to surface.
Thirdly, many claimants come from countries where authorities simply can’t be trusted. Getting them to trust ours takes time.
Yet in other cases, clients who appear to qualify for permanent residence in Canada might apply through other means believing them to be a safer option than playing Russian roulette with the Board.
It sometimes seems that the Board is stuck in the days of the Cold War when the very first words uttered by a defector were a request for protection.
Deca got lucky when she appealed to the Federal Court. Mr. Justice Campbell found it “obvious” that until 2006 there was no reason for her to make a refugee claim and concluded that the decision to the contrary constituted a “fundamental reviewable error.”
A delay in making a refugee claim carries a certain amount of risk and should be avoided whenever possible.
Having said that, I believe that it is those who truly fear for their lives who are in the best position to decide for themselves, and their dependents if, and when, they should place their lives in the hands of our less-than-perfect refugee board.

Immigration Minister Jason Kenney and his officials at Citizenship and Immigration Canada are making a mockery of Canada’s privacy laws by forcing foreign nationals, and possibly permanent residents, to agree to the release of their personal information to any and all foreign governments.
Last week, immigration lawyers discovered that the form used by foreign nationals for an extension of their stay in Canada (Form IMM1249) contains some new and disturbing language.
The new form readily acknowledges that by virtue of Canada’s Privacy Act “individuals have the right to protection of and access to their personal information.” Nonetheless, the form declares that the applicant’s personal information may be shared not only with the CBSA, the RCMP and CSIS but also with any “foreign governments.”
The applicant is required to agree that they are “not obliged to consent” to the release of the information, but they must acknowledge that “failure to do so will mean that the request will not be processed.”
This seems to be a violation of the Immigration and Refugee Protection Act which states that an officer “shall” extend the status of a foreign national in Canada if the officer feels that the applicant continues to meet the requirements for temporary status here. There is no requirement found in IRPA for the consent that is now being demanded. In any event, since this “consent” cannot be refused, it can hardly be called a “consent” at all.
It appears that the immigration department is attempting to impose a new requirement in the immigration application process that is not sanctioned anywhere in our immigration laws and which may also, in fact, amount to a violation of the letter, if not the spirit, of Canada’s Privacy Act.
According to Douglas Kellam, spokesman for CIC, this “generic message” is currently being implemented in thirty or so immigration application forms.
Given the significant privacy rights at stake by this development I contacted Ann-Marie Hayden, media relations officer for Canada’s Privacy Commissioner, who confirmed that her office was not consulted prior to the development of this dubious initiative.
It seems that this week I have more questions than I have answers.
Why was this change needed? Is it legal? When, if ever, does this “consent” expire? Can it be withdrawn? Will the applicant be told when his information is disclosed to a foreign government? What protection will be afforded to those who may face risk abroad as a result of the release of personal information? For example, if a foreigner enters into a same-sex marriage in Canada, can that information be released to the applicant’s government which views homosexuality as a serious crime? Will CIC return applications that have already been executed on the old forms? If so, when will this start? Or, has it already started?
While we await the answers to these questions, those facing the imminent expiry of their temporary status in Canada should immediately seek legal advice should they be concerned about the consequences of the possible release of their personal information.
Jennifer Stoddart, Canada’s Privacy Commissioner, states that it is her job “to heighten the value of privacy in a global society where security, trade, technology and consumer expectations have created a volatile atmosphere for our personal information.” She concedes that “governments have a seemingly insatiable appetite for personal information” and that privacy rights often receive “short shrift” as new anti-terrorism and law enforcement initiatives are rolled out.

This week, CIC has proven her right.

What remains to be seen is, will CIC get away with it?

It is not surprising for countries facing tough economic times to implement measures intended to better protect their domestic workers.
In Canada, this responsibility falls on the shoulders of Human Resources and Skills Development Canada (HRSDC).
Subject to certain exceptions, Canadian employers who wish to recruit foreign workers must demonstrate to HRSDC how the entry of the foreign worker(s) will transfer skills and knowledge to Canadians, fill a labour shortage, or directly create or retain job opportunities for other Canadians.
Canadian employers who wish to recruit overseas must first make an application to HRSDC for a Labour Market Opinion (LMO). If HRSDC is satisfied that the recruitment of a foreigner is in our interests, it will issue a positive LMO which then paves the way for the chosen foreign worker to submit a work permit application at a Canadian visa post overseas.
On Jan. 1, HRSDC implemented a national advertising requirement for all occupations.
The failure to comply with these minimum advertising requirements “will result in the application for a LMO being denied.”
As a general rule of thumb, the more complex the position, the less advertising is needed since those skill sets are believed to be harder to find here. The “lower” the position, the more likely it is perceived that we should be able to find someone locally to do the job.
Accordingly, employers who are offering positions in management or in occupations which usually require a university degree (i.e. positions described in our National Occupations Classification as skill levels O and A) must advertise the position on the national job bank (www.jobbank.gc.ca) for at least 14 calendar days. Alternatively, they can conduct similar recruitment activities consistent with the practices prevailing within that occupation. This can include advertising in professional journals, newsletters, national newspapers, or even consulting with unions or professional associations. These efforts must be made during the three months prior to the LMO application.
For occupations which usually require college education or apprenticeship training (i.e. NOC B occupations) advertising in the national job bank is mandatory and cannot be substituted with the alternatives listed above. Additionally, the advertisements must include the employers name and address and must disclose the wages being offered. This latter requirement will make this type of recruitment more delicate since existing employees will have access to the wages being offered to their foreign counterparts.
Lastly, employers who are recruiting those in occupations which require only high school education, occupation-specific training, or on-the-job training (i.e. NOC C and D occupations) must advertise on the job bank and must conduct other recruitment activities consistent with the practice in the occupation in question, all within three months of the LMO application. They must also demonstrate reasonable “ongoing” recruitment efforts in communities which face barriers to employment i.e. Aboriginals, seniors, and other disadvantaged groups.
HRSDC makes it clear that these requirements are the minimum efforts that can be expended and reserves the right to impose additional requirements.
From a public policy point of view, the recruitment of foreign workers is tricky business at the best of times. In the worst of times, the public insists on greater protection.
Now, it’s been delivered.

Q: My uncle is living in Canada. I want to claim five points for having a blood relative living there. Please let me know what documents I would need to prove that he's my uncle. He has lots of documents to prove that he's permanently living in Canada and will provide me those, but I don't know what documents they will ask me to provide to prove that he's my uncle.

A: Amongst the many requirements that applicants must meet to be approved under our Federal Skilled Worker category, they must also score at least 67 points. Points are awarded for a number of things such as education, age, abilities in English or French, work experience, etc.
If you can prove that you have a qualifying relative living in Canada who is a Canadian citizen or permanent resident then you will be awarded five points for “adaptability,” since it is assumed that your relative will help you to adapt to your new life in Canada.
It is important to note that your uncle cannot “sponsor” you and, in fact, does not assume any responsibility for you in any way. He does not need to “consent” to your immigration as it is his status and residency in Canada that gives you points, not his willingness to support you. Interestingly enough, there is no legal requirement that he even know of your immigration plans although it is likely that he will since you will likely need his help in gathering certain documents.
What you must do is prove three things. First, you must prove his status in Canada through a Canadian birth certificate, passport, citizenship certificate, or a record of landing or permanent resident card.
You must also show that he is living here. This is usually accomplished through a provincial driver’s license, a Canadian employment letter, a deed to property here, utility bills etc.
As for proving his relationship, there is no method stated in our immigration laws for doing so. Normally, you will be asked to provide the birth certificate of your parent who is your uncle's sibling. You will also need your uncle’s birth certificate. Both certificates should show the same parents. This proves that your uncle is the sibling of one of your parents.
When one or both of these birth certificates is not available, you will need to get creative. You should always start by producing affidavits from one or more reliable sources attesting to the qualifying relationship and the source of that knowledge. You should also have a sworn statement explaining the absence of these certificates. Officers know that in many parts of the world births are not always recorded. If your uncle immigrated to Canada, he may have disclosed the existence of your parent when he completed his forms. That might help to buttress your case. If he didn’t…look out!
Remember, you bear the burden of proving your case. If you need these points to reach 67, the officer will look at your evidence much more closely because it is determinative of your application and you are relying on less than ideal proof.
I am confident that you will be fine and that you will be joining your uncle here sometime soon.

I was asked recently how the current economic downturn might affect Canada’s annual immigration levels.
Immigration laws require our immigration minister to table a report with Parliament no later than 30 days after Nov. 1 of each year setting out how many newcomers Canada took in during the previous year and how many it plans to take on in the coming year.
Accordingly, in late November 2008, newly-appointed immigration minister Jason Kenney announced that in 2009 between 240,000-265,000 new permanent residents will be accepted in Canada. This exact target was used three years in a row and hasn’t really deviated too much from the annual targets set over the previous decade or two. In setting this target, Kenney maintained that this number is necessary to respond to the diverse skill requirements “of an expanding and dynamic economy.”
In his report the minister also hailed the accomplishment of his government when it passed Bill C-50, which presumably gave the immigration minister “more flexibility in processing and managing applications.”
Logic dictates that the minister might now wish to avail himself of his newly acquired powers and adjust his immigration plan, given that the plan was premised upon “an expanding and dynamic economy” when, in fact, we are confronted by a shrinking and underperforming one.
The truth is that, in terms of immigrants coming here permanently, it is unlikely that the actual number that will be admitted in 2009 will be far different from the one forecasted. Even if it were, it would likely have little impact on the Canadian workforce.
The reason is that as a percentage of our population, 240,000-265,000 newcomers represent less than one per cent of our national population. This number is even less significant when we factor in people who will be leaving Canada permanently during the same period.
Furthermore, the minister doesn’t really have that much wiggle room. Up to 71,000 of these future immigrants will be coming to Canada under the family class as sponsored spouses, partners, parents, children, and grandparents. It would be unwise for the minister to tell Canadians that their close family members will not be coming to Canada this year due to a deterioration in our economic conditions. Another 27,200 permanent visas are reserved for protected persons who we are, more-or-less, bound to offer refuge or protection here. Then there is another 10,000 immigrants who we will be accepting for a wide range of humanitarian considerations. That will leave about 156,600 in the “economic class” of which a growing percentage is selected by the provinces and territories. Kenny is certainly not likely to take them on either.
There is no doubt that the economic downturn will be more severe in countries whose economies are not as diverse and mature as ours, thereby making Canada relatively more appealing. However, that will only increase the number of applications we are likely to receive, but not the number of permanent residents that we will accept.
As for those who will want to come to Canada on temporary work permits, it is likely that it will be more difficult for them to get a favourable labour market opinion from HRSDC whose job it is to make sure that Canadian workers are not overlooked when our jobs are offered to foreigners.
Canadian businesses are able and willing to change direction quickly when market conditions dictate. Although the legal mechanisms exist in our immigration program to effect changes, for practical and political reasons it is not an easy option to exercise.

Joseph and Alex have been best friends for many years.

Joseph was born here in Canada. His parents are of Christian-Lebanese descent.

Alex was born in India to traditional Sikh parents who immigrated here when he was just a boy.

Their backgrounds are as different as their personalities. Joe is the consummate professional… cool, calm, organized … and is always sporting an infectious smile. Alex on the other hand has a mind that simply races as if it were in Formula One. His ideas and words flow a mile a minute.

Joe and Alex worked together in a computer company that used to look after my law firm's computer network. When that company folded, they struck it out on their own as partners. I didn’t hesitate in being amongst the first to give them my business. Since launching Jolera in 2001, the guys grew their venture to become the 49th fastest-growing company in Canada.
As if these two didn’t do absolutely everything together, they both became engaged right at about the same time. I felt honoured to be invited, along with my wife, to Alex’s wedding last Saturday night.

Monica and I arrived at the festivities a bit late since we had to await the conclusion of the Jewish Sabbath. Although Joseph was busy with his duties as master of ceremonies he nonetheless made sure to guard our seats at his table. He and his sisters made every effort to find something kosher for my wife and me to eat.
Sitting next to us was a mixed race couple (he’s black, she’s white) who have been married for about 20 years, much like Monica and I. My wife, who is of Hungarian and Polish parents, spent the night chatting with them and sharing funny stories about the challenges of raising daughters into their teenage years.
The band was tremendous. They played some of my favourites; James Brown, Stevie Wonder and the like. When they put their instruments down, an Indian drummer leapt out in front of the stage beating both sides of the traditional drum hanging from his neck. Immediately, men and boys sporting turbans of every colour exploded onto the dance floor with their hands and wrists held high in a twitching rhythmic manner. I quickly jumped in with both Moroccan feet trying to catch the unfamiliar but beautiful beat of their traditional Indian music.

As for Alex and his beautiful bride, Aman, they just looked so much in love.

Of all the speeches given that night, I remember most that of Alex’s mom. She talked about how she and her husband decided to leave their birthplace, India, to come to Canada, not for their own sake but for that of their children. When I was young, I heard this sentiment from my own parents and more recently from many of my clients over the years.

Alex’s mom recounted that young Alex was embarrassed about her wearing a sari in public when she dropped him off at elementary school. He was afraid that his friends would think that they had just “gotten off the boat.” She said that she was proud that, as an adult, he chose a bride who, although modern, was sufficiently steeped in her own culture to wear a sari for her wedding ceremony.
As an immigration lawyer, I have never viewed my role as a pitchman for Canada. If people choose, on their own, to live here I will simply help them make it happen.
But as I looked at the scene around me I couldn’t help but feel so proud of my adopted country and the peace, joy, harmony, tolerance and prosperity that we have cultivated together in this vast and chilly piece of the planet.
While basking in the warmth of this celebration, I recalled how I spent the weekend before -- lighting candles at a memorial in Mississauga commemorating the victims of the recent terrorist attacks, a world away in Mumbai, which claimed more than 160 innocent lives.
While some of our world leaders wage wars to achieve peace, and while others draft lofty accords in hopes of achieving amity, at a banquet room last week in the lower level of the Wyndham Garden Hotel, there was no such struggle.
Wedding guests of every major faith, colour, and ethnicity gathered effortlessly on a peaceful, wintery Canadian night to celebrate the union of two young people in love.
I have no doubt that such scenes play themselves out every day all over this country. We hardly even take notice.
Yet, this is why this country is so great and why so many people simply want to live here.
May we Canadians enjoy this effortless peace during this holiday season, now and for always, and may we stand as a source of inspiration for our friends around the world who simply want to live in peace.

Happy holidays to all.

Whenever a new minister of immigration is appointed in Canada, the pundits pull out the tea leaves in search of a glimpse into the future of Canadian immigration policy.

I, on the other hand, don’t really bother much.

The truth is that Canadian immigration ministers rarely exercise any significant personal influence on our immigration policy. They rarely have any immigration experience whatsoever or any publicly known positions on immigration policy prior to assuming responsibility for this portfolio.
Even if they did, they are not free to exercise their own will. They are but one voice in cabinet and take their direction, not from their conscience, but from the prime minister's office. In any event, they are rarely around long enough to actually do anything of substance before the revolving door to CIC’s national headquarters spins around and smacks them on the behind in the opposite direction.
Since February 2006, when Stephen Harper became prime minister of Canada, he has named not one, not two, but three immigration ministers. Monte Solberg lasted 11 months, and Diane Finley lasted 22 months before being replaced on Oct. 30th by Jason Kenney.
Both Solberg and Finley were tightly managed by the PMO and neither articulated anything remotely bold or creative in respect of an immigration program, which just about everybody agrees is sorely in need of major repair.
This past week, Kenney offered no profound insight into where we may be headed. All he said was “I look forward to the privilege of serving as Canada’s Minister of Citizenship, Immigration and Multiculturalism as we continue our commitment to reuniting families, to maintaining our humanitarian obligations to refugees, and to supporting Canada’s economy.”
As Jerry Seinfeld might have said “Yadda, yadda, yadda”.
What exactly does Kenney plan to do, if anything, about a backlog of close to 900,000 applications for permanent residence? What about the 500,000 to 1,000,000 undocumented workers in Canada? What are we going to do with them? What are we going to do about our selection system in the face of a looming worldwide recession? Are we going to continue importing the worlds “best and brightest” so that we can seat them behind the wheel of a downtown Toronto cab?
I doubt we will catch any real insight from Kenney, who will be reading closely from his prime minister’s unpublished script.
As for me, I will be looking south of the border for some glimpse of our immigration future.
Since 9/11, the U.S. administration has expressed little stomach for the adoption of any progressive immigration reforms of any kind notwithstanding many objective reasons to act. The White House needed to be seen as "tough" – and not necessarily “smart” - on immigration. Under these circumstances, Canada would not dare risk being seen as “soft” on immigration.
But now our American friends have elected a bold, creative and smart new leader in Barack Obama.
He has a huge mandate, an unprecedented approval rating for any president-elect, and the “ethnic vote."
With respect to immigration he has articulated three basic principles.
First, he wants to secure the U.S. borders to stem the 500,000 or so new illegal immigrants to his country each year.
Second, he intends to crack down on employers who hire illegals.
Third, he intends to create “a pathway to citizenship” for the approximately 12 million people that are already in the United States. Obama concluded wisely that “the notion that we are going to round up 12 million people is unrealistic”.
In the post-9/11 world, Canada could not even dream of an amnesty program for its own illegals even if it was felt to be in our national interest.
If under Obama’s leadership, the U.S. goes in that direction, it will pave the way for our own government to do the same. Perhaps we will follow up on some other much needed immigration reforms.
In my view, if you want to see where Canada might be headed, follow Obama…not Kenney.

Q. I am a Canadian citizen residing in Toronto and am engaged to a person who doesn't have legal status in Canada. He's never been convicted of a crime and he doesn't have any medical problems. We've been in this relationship for about three years. Now it's been a year that we have shared the same bank account and the same apartment. We intend to get married and start a family together since we love and respect each other.



I read on www.cic.gc.ca that “you can apply as a sponsor if your spouse, common-law or conjugal partner, or accompanying dependent children live with you in Canada, even if they do not have legal status in Canada. However, all the other requirements must be met.”

Can I sponsor him and complete the sponsorship process while he's in Canada without him having to return to his country of origin?

Thanks a lot and God bless.

A. You definitely can sponsor him from within Canada and without him having to leave the country. However, there are a few factors to consider.

Firstly, you can’t sponsor a “fiancée,” but you can sponsor a common law partner with whom you have cohabited in a conjugal relationship for at least one year. (See my most recent column in which I described what you will have to prove to qualify as such.) Since you have lived together in your apartment for one year, you may qualify if you meet all the other conditions.

Secondly, since your fiancée is here illegally, he has shown a strong willingness to stay in Canada since he is willing to break Canadian law in order to remain here. This will definitely be a factor in the mind of the officer who will have to decide whether he is staying in Canada to be with you or whether he is with you so he can stay in Canada.

Thirdly, cases processed in Canada can be quick (i.e. one of our clients who we filed for in April, 2008 is scheduled to be landed next week). However, if CIC decides to interview your fiancée, then it will definitely take longer -- more than a year depending on how busy your local CIC is.

Your fiancé is more likely to be referred to an interview due to his unlawful status here. If an interview is scheduled, your application may take longer inland than it would take overseas, again depending on the processing timeframes of the visa post responsible for your fiancée’s country of nationality.

Finally, there is always a chance, usually small, that your fiancé could be detained by immigration authorities. This is not likely if your fiancé merely overstayed his status here.

However, if he was known to be here by immigration authorities and was asked to leave but didn’t, the chances of arrest are higher. Immigration officials will have to decide if he is a “flight risk” even though he has come forward and identified himself and his whereabouts.

I would recommend that you see an experienced immigration professional for a consultation so that you can determine whether or not you want to go at it on your own or with hired help.

Q: I just heard today, that getting landed immigration status within Canada through marriage is not really necessary anymore. I heard that if the couple just lives together for a year, they would be considered as “common-law” and immigration (officials) would accept this for landed immigrant status. Is this really true?

A: This is true…sort of.

It is true that in June 2002 Canadian citizens and permanent residents were granted the right to sponsor their “common law partners”. It is also true that these cases can now be processed from within Canada.
However, where you might be going wrong is when you say that they “just” have to live together for a year. If this were true that would mean that we can sponsor someone who is nothing more to us than a roommate. This is not so.
In order for two people to be considered common law partners they must be in a “conjugal relationship”. The fact that they are having “conjugal” i.e. sexual relations is also not enough. It doesn’t matter if they are in a same-sex or opposite-sex relationship.
CIC expects to see sufficient proof that they have a mutual commitment to a shared life… i.e. “trying out” a life together is not enough. Each must already be committed to a life together. Accordingly, they can’t be simultaneously committed to someone else. They must be committed to sexual exclusivity. They must be physically, emotionally, financially and socially interdependent on one another. The relationship must be permanent, genuine and continuing. They must present themselves as a couple and be perceived by others as such.
In other words it’s like they’re married…but without a certificate.
You may be surprised to know that people can qualify as common law partners even when they are still married to someone else. However, they must prove that their marriage has broken down and that they have lived separate and apart from their spouse for a sufficient enough time to establish a one-year common-law relationship with their current partner.
In certain circumstances, after the one year period of cohabitation has been established, the partners may live apart for some time without legally breaking their cohabitation. If they are separated due to armed conflict, illness of a family member, or for employment or education-related reasons etc, they can still be viewed as living common law. However, one would expect to see evidence that they remain together through visits, correspondence, and telephone calls.
Finally, it’s possible to be considered “common law” even where the couple has not cohabited. If they are committed to each other as described above but are unable to cohabit due to persecution or any form of penal control, then they will be considered to be “common law partners” nonetheless.
So you see, living together may not be enough to qualify as a common law partner whereas the absence of a shared roof may not disqualify a couple from being viewed as such.
Interesting, huh?