A US partner moving to Canada, some unique aspects to consider

[local66]

This has been a goldmine of information, so I just want to thank all the people who read over these forums and share their experiences, and offer insight and input. I've read the stickies up top and haven't been able to find the exact solution to some of the more unique considerations, so I thought I'd describe my situation here and get some input. Apologies if this has been answered in some thread down below - I haven't had time to comb through the 32000 threads!

I'm a Canadian citizen currently in a long-distance same-sex partnership with an HIV+ individual currently on ARVs. We have been together for almost 2.5 years, but have never lived together for longer than 2 months, and we are not married. My partner is considering relocating to Canada, and thinking about some form of PR down the road. After looking through all the resources on the CIC website, I've come up with the following plan of action:

1. Come to Canada as a visitor, residing with me, and possibly find work and apply for a work permit during this time. CONCERN: The 6 month time limit - how does that apply to US citizens, for whom entry into Canada is not governed by a visa? I don't envision this to be a problem, since he would need to return to the US to get medications/health care anyway during this period of time, but just to make sure. In regards to the work permit - my partner is educated and has extensive experience in his field (IT), but it is not listed under the NAFTA list of LMO exempt professionals. This might seem like a dumb questions, but how likely is a Canadian employer to apply for an LMO on behalf of a potential foreign employee?

2. After a period of 12 months, I can apply to sponsor him as a common-law partner, which would exempt him from the medical inadmissibility clause affecting HIV+ individuals on ARVs from applying for PR status. CONCERN: What does cohabitation for 12 months mean exactly, and how is this proven? E.g. if he's living with me but under a 'visitor' visa or even a work permit, would he need to do things like change the address to where his bills are sent? I'm confused by this. Does staying under the 'visitor' status for a year even count as cohabitation?

Can anyone address the concerns/questions that I have, above? Does anyone envision any issues with this plan of action?

Thanks in advance - much appreciated!

 

[Avadava]

I could try to shed some light on your concerns.

1. He can definitely come to Canada as a visitor and indeed he will be allowed to stay for 6 months. The general rule for visa exempt nationals is 6 months out of the year. He can however, 30 days before expiry of those 6 months, apply for an extension on his visitor visa. Many couples who wish to establish common law take this route. He will not be allowed to work for a Canadian company while on a visitor's visa and I don't think he will have much luck with finding a company willing to apply for an LMO, especially in the IT field, which is over saturated. He can consider working for an American company online.

2. 12 month cohabitation means living together at the same address for 12 months. Sometimes, a 2 week break is acceptable (for travel for example), but there is no guarantee with that. You two must be physically present at the same address. His visitor status will not prove common law nor cohabitation. You will need: join lease contract on the condo, letters in both your names at the same address (over an extended period of time, preferably one for each month of cohabitation), affidavits from friends and family saying you have lived together and acknowledging your relationship, life insurance naming each other as the beneficiary, joint bank account, document those 12 months with pictures (heard pictures in an informal setting are very positive - like both of you wearing PJs), etc.

I'm sure people that have applied as common law can give you more examples of proof of cohabitation, I just named a few.

 

[Ponga]

Hi,

I think the first issue would be to determine if his current medical condition is going to ultimately prevent him from becoming a PR, under the Family Class Spousal Sponsorship program. Here are a few threads that might be helpful:

http://www.canadavisa.com/canada-immigration-discussion-board/-t6645.0.html

http://www.canadavisa.com/canada-immigration-discussion-board/-t36016.0.html (seems to be in his favor)

http://www.canadavisa.com/canada-immigration-discussion-board/-t6784.0.html (also seems to provide favorable opinions)

6 month time limit:

A person entering Canada from a visa exempt country is typically allowed to `visit' for 6 months, unless told otherwise by the border officer. If your partner comes to Canada, there's a good chance that he will be allowed to stay for 6 months, but this is never guaranteed. The potential problem that you and he will face, is his need to return to the US for medications and/or treatment. Since you have to establish 12 months of cohabitation to be eligible for a common-law sponsorship application, each time he leaves Canada, there's no real guarantee that he will be allowed to re-enter for another 6 months. If he's out of Canada for more than a couple of days, that in and of itself could jeopardize the 12 month requirement of cohabitation. Sounds like this could be a potential hurdle that you should discuss with your partner; how to make the math work.

Regarding employment in Canada:

Unless he can find an employer in Canada to complete the LMO process for him, it's likely that he would not be able to work in Canada until you have resided together for 12 months (to be eligible for common-law sponsorship) + ~8 months for AIP (Approval In Principle) for an Inland application. Once an Inland applicant has AIP, they can apply for an OWP (Open Work Permit).

If you opted for an Outland application (which can be done even if you are both physically `living' in Canada) the entire process could be complete in ~ 8 months. Either way, he could be unable to work for 20 months +/-

Cohabitation is not dependent on being able to `legally' live with your partner. If he `visits' you for a total of 12 consecutive months, you are common-law on day 366.



Good luck!

 

[local66]

Thank you for the great and detailed replies. Just a few points of clarification:

I'm a bit confused about the concern of not being able to get back into Canada, and voiding the 12-month cohabitation period. I've read about this several times from different sources. He's never had a problem coming and going from Canada (over 6 times a year), although it's never been in excess of a week at a time. I just want to get a sense of how much of this is an actual concern. Do the border people think "hey, wait a minute...you visited and stayed for 5 months....maybe we shouldn't let you back in." E.g. does an extended stay make him look suspicious and more prone to being denied access? I don't quite understand, but I want to get a better idea, because he is looking at jobs that might require a bit of travel.

In regards to renewal of the visitors visa, what are the chances that the government would actually approve this? Not that I think this will be necessary anyway, because, as I mentioned, getting medication every few months will necessitate return to the US, even for a week.

In terms of work, how would working for a US company remotely while living in Canada work? I was under the assumption that a work permit is only required for employment under a Canadian company. In addition, what visa requirements are needed? I visited the CIC page on application to work temporarily in Canada (sorry, I'm not allowed to post links for some reason) and got the impression that there is no special 'work visa', at least for US citizens. I may be wrong.

Regardless, from what I you're telling me regarding LMOs, it seems like the best option is to just find work in the US that will cover his health insurance, but allow him to work remotely, rather than try and find a Canadian company that will hire him.

Thanks once again. I think the first step is to establish the 12 months of cohabitation, because that seems to be the only way to get exemption for inadmissibility.

 

[Avadava]

Have your looked into getting a NEXUS card? It allows US citizens to enter Canada and leave Canada often, like even once a day. I heard many US spouses of Canadian citizens use this card. They work in the US and live in Canada. People with a NEXUS card are considered low risk based on being pre-approved travelers. As far as I know, there is even a special lane at the border for those with such card, which expedites the border crossing. More info here: http://www.cbsa-asfc.gc.ca/prog/nexus/menu-eng.html

Regarding the work, I have read a case where the UK spouse who was in Canada on a tourist visa, was working online, from his own home, for a UK company. He paid taxes in UK, and remote work is not considered "working in Canada."

I would imagine something like this: Let's say I am an independent translator who works from home. I go on a 2 week trip from Germany to Canada, as a tourist. While in Canada, I work on my laptop and finish several translations, for which I get paid into my German bank account. Is this considered working in Canada? No.

Let's assume a different scenario. Your partner works for several months in Canada, for a Canadian company under a legal work visa. When his visa expires and he needs to leave Canada, he won't be able to continue working for the Canadian company from the US. He can't work remotely from his US home for the Canadian company, because the income he gets is from Canada, and he doesn't have a Canadian work permit. Please keep in mind that all this is just my personal understanding and do not take my advice as legal. You may wish to consult with someone specialized in the employment law in Canada. A lawyer maybe can give you a cheap consultation in this matter.


This is what I found regarding HIV and immigration to Canada:
"You may be medically inadmissible to immigrate to Canada if you are HIV positive.

However, you can still be HIV positive and immigrate to Canada if you are a spouse, common-law, conjugal partner or dependent child of a Canadian citizen/permanent resident and are applying under Family Class. This is because a spouse/partner and dependent child will not be medically inadmissible for conditions considered to cause excess demand in health and social services.

Applying under non-Family Class categories (such as Skilled Worker, Entrepreneur, Investor, and Self-employed) can make your immigration application unsuccessful if you are HIV positive.

It is challenging to pass the medical exam if you are HIV positive and applying under a non-Family Class category. If you are on an anti-retroviral medication, you are most likely considered to be medically inadmissible according to "38(1)(c): might reasonably be expected to cause excessive demand on health or social services". If you are not on any medication, you might be able to pass the medical exam. There is no way to predict the medical exam results unless you apply and take the medical exam. Every body is unique and different; consequently, every HIV positive condition is different. It is up to the medical officers from CIC (Citizenship and Immigration Canada) to determine if you are medically admissible to Canada."

 

[scylla]

Have your looked into getting a NEXUS card? It allows US citizens to enter Canada and leave Canada often, like even once a day. I heard many US spouses of Canadian citizens use this card. They work in the US and live in Canada. People with a NEXUS card are considered low risk based on being pre-approved travelers. As far as I know, there is even a special lane at the border for those with such card, which expedites the border crossing. More info here: http://www.cbsa-asfc.gc.ca/prog/nexus/menu-eng.html

I am a long-time Nexus card holder. Yes - there are special lanes for those with Nexus cards and having a Nexus card does typically make re-entry easier and faster. Having said that, a Nexus card is not a special kind of visa - it's just an enhanced form of ID. A Nexus card certainly does not guarantee reentry and it's still very possible to encounter issues reentering Canada as an American with a Nexus card. (Happened to a very good friend.)

I would still recommend the Nexus card for anyone who travels frequently.

 

[local66]

Thank you so much once again.

From what I understand, working remotely for a US based company seems like the best option at this point in time.

The two things that still confuse me are the 12 month cohabitation issue and this idea of re-entry (even with NEXUS).

For my training, I often need to spend a month away from home. Being in IT, he often needs to travel 1-2 weeks at a time to clients either in Canada, or in the US. Does this type of arrangement automatically defeat the cohabitation arrangement? From what I read, I am getting the sense the we essentially need to be attached at the hip for 12 months, which is a bit silly. In addition, there seems to be a bit of a disconnect in this regard - we could easily still have joint bank accounts, leases, bills, photos etc..and still have extensive independant travel in between. What counts as 'continuous' cohabitation?

The second issue - reentry. I know the NEXUS enables quicker reentry (that's a GREAT idea and I think it's only $50 or something a year), but what I am still trying to clarify is why he would be denied entry in the first place. It's never happened before, so I'm just confused why this might be an issue if we stay within the 6-month timeline. We wouldn't have broken any rules. Is re-entry denied simply on the grounds that they suspect he is trying to get PR status, or that he is staying longer than they 'feel' is appropriate?

Thanks once again - I feel like I'm beating a dead horse, so I apologize in advance if I didn't interpret your answers correctly.

 

[scylla]

Yes - separation can certainly break the 12 month cohabitation issue. I believe there is general agreement on this forum is that CIC seems OK with a three week break during a cohabitation period (as long as the three weeks only happens a couple of times during the 12 month period - not regularly) - but anything longer starts being a problem and tends to reset the 12 month period (i.e. restart it from scratch) in CIC's eyes. If continuous cohabitation by this definition isn't possible for you - then I would recommend you look into getting married.

To answer your second question, your partner is only allowed to "visit" Canada at this time - meaning that he should not be making Canada his primary residence (because this becomes "living" in Canada). Border officials tend to frown on behaviour that makes it look like you're living in Canada (i.e. spending more time in Canada then in the US) and this is where you can end up being refused entry (for spending too much time in Canada, having insufficient ties to the US and generally acting as a resident rather than a true visitor). The way to by-pass this to achieve the 12 months co-habitation is to come to Canada on the 6 month allowed visit and then to request an extension on the basis that you are working towards the 12 month common law requirement. These extension requests tend to get approved and as long as the visitor remains in Canada - all is good. The trouble with your plan is that your partner plans to leave and re-enter frequently. Depending on the border official enountered, they may not be happy with what he's doing since it will lean towards living in Canada rather than visiting. I know it may seem like a bit of a double standard - but it is what it is and refusals absolutely happen from time to time for this reason.

 

[scylla]

Is re-entry denied simply on the grounds that they suspect he is trying to get PR status, or that he is staying longer than they 'feel' is appropriate?

To answer this specific question - yes, unfortunately re-entry can be denied because he is staying longer than they 'feel' is appropriate.

 

[local66]

Thanks for the replies, once again. I will need to take some time and figure this out. Will update the thread with any new developments. Much appreciated!

 

[Kasbal]

Hi,

I am new to this forum and I am in the process of sponsoring my husband, US green card holder, to Canada. We are still gathering all the documents that are required....and we hope to mail the application by the end of February. However, I would like to know if there are people in this forum who have done it before. Also, how long does it take to sponsor a green card holder to Canada?

This is going to be an outland application as my husband is still working in USA.

Ps: I am Permanent resident in Canada and our wedding was in Canada in 2013.

Please help

 

[keesio]

I know the NEXUS enables quicker reentry (that's a GREAT idea and I think it's only $50 or something a year)

It's actually $50 for 5 years (breaks down to $10 a year). It is really handy. Though to be honest, if you mostly fly back and forth like I do, it is not as valuable since they (both US and Canada immigration) installed automated kiosks for customs. They are pretty fast. I do appreciate the NEXUS only baggage security line however. Still makes NEXUS totally worth it.