asking to review your application with H&C factors?

[kourts]

I was reading the manual and found a section that says "A25 requires officers and delegated authorities to examine humanitarian and compassionate factors (H&C) upon the applicant's request."

"This includes an applicant who has a sponsor who does not meet eligibility requirements."

Could I add in my application that I'd like them to review the sponsorship application under H&C if she is found not eligible or they think she can not provide for me.

Do you think being a same sex couple,and not having certain rights here and the fact that I can't sponsor her to come to the states, and if denied PR there that we wouldn't be able to be together is good enough reason?

[scylla]

H&C is a completely separate process. In the event your partner was found ineligible to sponsor, you would have to file a new set of paperwork to be considered under H&C.

H&C shouldn't be required just because you're a same sex couple. Same sex couples can apply as married, common law or conjugal partners under the regular spousal application stream.

[canadianwoman]

"This includes an applicant who has a sponsor who does not meet eligibility requirements."

Could I add in my application that I'd like them to review the sponsorship application under H&C if she is found not eligible or they think she can not provide for me.

I don't think you should mention H&C grounds in your initial application. In all likelihood, your wife will be found eligible to sponsor; asking for H&C consideration now would just draw the visa officer's attention to the fact that you are worried she won't be able to support you, whereas if you don't mention it, the visa officer will probably just assume that the two of you will be able to get jobs and support yourselves; and in any case H&C consideration is usually used in cases where there are children - they take the best interests of any children involved into account.

[kourts]

No, like stated above you can request them to review the application with H&C factors, and it doesn't require you to file a separate application or pay separate fees.

I know same sex couples can apply as the family class, but the fact that I can't apply to have her come to the states, this is the only way for us to be together.

I don't remember where in the manual i seen this, but when I find it, I will include the page and section.

[rjessome]

H&C is a completely separate process. In the event your partner was found ineligible to sponsor, you would have to file a new set of paperwork to be considered under H&C.

H&C shouldn't be required just because you're a same sex couple. Same sex couples can apply as married, common law or conjugal partners under the regular spousal application stream.

No, H&C is not a completely separate process in an outland application.  In fact, if you want the application to be considered on H&C grounds, you NEED to ask for it at the outset.  You can't ask for it later unless under appeal.

In order for H&C grounds to be considered, you must prove that you (the applicant) are a member of the family class per the Act and Regs.  Then yes, you could state the lack of recognition of same sex couples in that state where you live, inability to marry and therefore an immigration bar for your Canadian spouse to join you in the US.  So basically you prove your inclusion in the Family Class AND ask for H&C.

[kourts]

Thank you rjessome    I do qualify for the family class since I am her spouse. so you believe that this would be considered under H&C factors?

[canadianwoman]

Just being someone's spouse is not enough to qualify for family class. This is where proving your relationship is real comes in. If the visa officer does not believe the relationship is genuine, then the applicant is not a member of the family class, even if the sponsor and applicant are married or have lived together for a year. And so if the visa officer does not believe the relationship is genuine, H&C considerations cannot be looked at.

However, I think from what I've read about your case, you should have no trouble proving your relationship is genuine.

[kourts]

I know that before same sex couples were considered in the family class that they used H&C to get there to be with their loved ones. Even though the states have come a little farther, I think that the situations I face could still be considered under H&C.

[inlimbo]

No, H&C is not a completely separate process in an outland application.  In fact, if you want the application to be considered on H&C grounds, you NEED to ask for it at the outset.  You can't ask for it later unless under appeal.

In order for H&C grounds to be considered, you must prove that you (the applicant) are a member of the family class per the Act and Regs.  Then yes, you could state the lack of recognition of same sex couples in that state where you live, inability to marry and therefore an immigration bar for your Canadian spouse to join you in the US.  So basically you prove your inclusion in the Family Class AND ask for H&C.

How about applying for H&C grounds later in the process, when the family situation has changed from when the file was initially opened?

[canadianwoman]

Maybe there's no harm in asking for H&C consideration in your application. First prove that your relationship is genuine, then state that you are also asking for H&C consideration because in your state same-sex couples cannot marry, and are not recognized for immigration purposes, so there is no way for you to sponsor your wife to the States if your Canadian PR application is refused.

[rjessome]

How about applying for H&C grounds later in the process, when the family situation has changed from when the file was initially opened?

No, you can't ask for it later unless it is under appeal AND the applicant has been deemed a member of the family class.

It's complicated and canadianwoman gets it in her explanation.  The first prong of a spousal PR application is to prove that the relationship is genuine AND was not entered into for the purposes of gaining immigrant status to Canada. If they pass this test, the applicant IS considered a member of the Family Class.  Then the second prong is admissibility.  So for example, a couple passes the genuineness test but there is a criminal admissibility issue or the sponsor does not qualify for some reason.  You can ask for H&C considerations to overcome the admissibility issues and/or the sponsor's eligibility issues.  It doesn't mean that you will get a positive result, but you can ask.  The important point is that if the relationship doesn't pass the first test, H&C will NOT be considered.  You don't see it used much in spousal sponsorship cases that don't have extraordinary circumstances because a VO will not consider H&C to decided whether a relationship is genuine which tends to be the main point of issue in these types of cases.  But asking for H&C will not hurt an application.  If it's not necessary, it will be ignored.  

[inlimbo]

No, you can't ask for it later unless it is under appeal AND the applicant has been deemed a member of the family class.

It's complicated and canadianwoman gets it in her explanation.  The first prong of a spousal PR application is to prove that the relationship is genuine AND was not entered into for the purposes of gaining immigrant status to Canada. If they pass this test, the applicant IS considered a member of the Family Class.  Then the second prong is admissibility.  So for example, a couple passes the genuineness test but there is a criminal admissibility issue or the sponsor does not qualify for some reason.  You can ask for H&C considerations to overcome the admissibility issues and/or the sponsor's eligibility issues.  It doesn't mean that you will get a positive result, but you can ask.  The important point is that if the relationship doesn't pass the first test, H&C will NOT be considered.  You don't see it used much in spousal sponsorship cases that don't have extraordinary circumstances because a VO will not consider H&C to decided whether a relationship is genuine which tends to be the main point of issue in these types of cases.  But asking for H&C will not hurt an application.  If it's not necessary, it will be ignored.  

Thanks for this.
The relationship has been accepted; says so in the file notes.
We are proceeding with an H&C consideration request because of some very 'gray area' inadmissibility issues.

Is there an 'inadmissibility' thread on this forum?

I find it suspect that an applicant can be considered inadmissible because of something in their past that they were never caught and charged for, served time for, etc. Has anyone ever heard of this?

[rjessome]

Thanks for this.
The relationship has been accepted; says so in the file notes.
We are proceeding with an H&C consideration request because of some very 'gray area' inadmissibility issues.

Is there an 'inadmissibility' thread on this forum?

I find it suspect that an applicant can be considered inadmissible because of something in their past that they were never caught and charged for, served time for, etc. Has anyone ever heard of this?

Yes, it's part of the criminality assessment.  The words "committed an act" are included in the legislation which means that you don't have to have been charged and/or convicted to be found criminally inadmissible.  This is not something you want to take on yourself.  Hire an experienced consultant/lawyer to deal with this.  You won't find to much about this on the forum because it's very complicated.

[kourts]

well if you were never caught for it,charged for it or served time for it and it wasn't on the police certificate, how would anybody know about it?

[canadianwoman]

Sometimes people admit things in the interview, or admit to things in the application that they don't realize will cause huge problems for them. One guy I know entered another country using a fake passport, and admitted it on the application. He was not charged with this in the other country - in fact, the gov't never discovered it was a fake passport. But he was there for 7 years, so how to account for this time in your personal history if you don't say where you actually were? And that requires a police certificate, which they can't get because he was on a fake passport.