Conflict on Visitor Status and PPR-Please Urgent Help

[PRapplicant1385]

That will be your choice. The PR decision will not be put on hold as long as you are in status.

PR decision won’t be on hold as I’m the primary applicant with status?
Should she also be in status for the PR decision?

 

[canuck_in_uk]

That is not true. The regulations and the OP manual are clear on this. If you have a divergent opinion, so be it.

I neither mention expired TRV, the discussion is about someone who was admitted into Canada on a valid TRV, processed at the border and granted admission for the duration of stay. For study permits the DS is for the duration of the program, for WP, it is for the duration of the validity of the work permit, for visitor's visa, it can be a maximum of 6 months, except fr PG1, which can be unto 2 years.

When an applicant, described above, who have been admitted and during the valid DS leaves Canada for US, and reenters which his DS is still valid, the CBSA officer will not re-process the applicant, but merely verify the credentials and let him in for the same DS. If the applicant wishes, they can file extension when inside Canada.

However, if the applicant leaves Canada and reenters after the DS has expired, the applicant will be reassessed and a new DS will be issued as the case may be.

This is what the regulation is for and the OP says. Similarly on the practical side, this can be verified from he CBSA travel history report and so can be done on the Us side by visiting the I95 website of the USCIS.

You referred to regulation 190(3)(f) that allows work and study permit holders with expired TRVs to travel to Canada provided they only visited the US or St Pierre and Miquelon.

For visitors, status ends at departure.

https://laws-lois.justice.gc.ca/eng/regulations/sor-2002-227/section-183.html

(4) The period authorized for a temporary resident’s stay ends on the earliest of

• (a) the day on which the temporary resident leaves Canada without obtaining prior authorization to re-enter Canada;

A TRV or VR is not authorization to re-enter Canada. Visitors are assessed at each entry. If there is no dated stamp or VR, status is granted for 6 months.

https://www.canada.ca/en/immigration-refugees-citizenship/corporate/publications-manuals/operational-bulletins-manuals/temporary-residents/visitors/examination-admission-port-entry.html#s02

As border services officers are not required to place a stamp in a client’s passport at the primary inspection line or primary inspection kiosk, when a client leaves and seeks re-entry to Canada, the border services officer may elect not to stamp the passport. The subject then receives a 6-month visitor status at the time of the new entry.

 

[PRapplicant1385]

So guys please let me know the best option:

1- Leaving Canada -> replying
2- Replying pushing back that she is in legal visitor status
3-Replying that legal visitor status offering that she can leave the country if they need

I'm preferring leaving over restoration since the PR may delay till after the restoration (which takes 3 months) while leaving the country ends the issue

 

[legalfalcon]

You referred to regulation 190(3)(f) that allows work and study permit holders with expired TRVs to travel to Canada provided they only visited the US or St Pierre and Miquelon.

For visitors, status ends at departure.

https://laws-lois.justice.gc.ca/eng/regulations/sor-2002-227/section-183.html

(4) The period authorized for a temporary resident’s stay ends on the earliest of

• (a) the day on which the temporary resident leaves Canada without obtaining prior authorization to re-enter Canada;

A TRV or VR is not authorization to re-enter Canada. Visitors are assessed at each entry. If there is no dated stamp or VR, status is granted for 6 months.

https://www.canada.ca/en/immigration-refugees-citizenship/corporate/publications-manuals/operational-bulletins-manuals/temporary-residents/visitors/examination-admission-port-entry.html#s02

As border services officers are not required to place a stamp in a client’s passport at the primary inspection line or primary inspection kiosk, when a client leaves and seeks re-entry to Canada, the border services officer may elect not to stamp the passport. The subject then receives a 6-month visitor status at the time of the new entry.

What you are referring to are general provisions. These general provisions would usually apply, but as per the rules of statutory interpretation, if a regulation addresses a specific circumstance, then it will take precedence over the general provision.

As per the original post the OP had the issue wherein, he reentered Canada while the DS was valid. The OP was admitted into Canada, and therefore the conditions of Regulation 190(3)(f) would trigger, "(ii) return to Canada by the end of the period initially authorised for their stay or any extension to it"

This regulation referred under R 190(3)(f) is for, Visa exemption — purpose of entry

(3) A foreign national is exempt from the requirement to obtain a temporary resident visa if they are seeking to enter and remain in Canada solely
(ii) return to Canada by the end of the period initially authorised for their stay or any extension to it"

At the port of entry, if a returning visitor, who was previously admitted and is still in DS, would be admitted into Canada for the same DS as originally granted if they only visited US or St Pierre and Miquelon. When a returning visitor falls under this category, they will not even be assessed for a visa requirement, given that they squarely fall within the regulation.

The DS expired when the VR expired, and thus the OP has to either leave Canada, or apply for an extension (will be on implied status until a decision is made in accordance with R183(5)).

This is why IRCC's response states that person in Canada is without valid status because OP was only admitted into Canada until "the end of the period initially authorised for their stay or any extension to it."

This is my understanding of the facts and the law, based on what OP's post suggested. However, in general circumstances, the re-entry would trigger a 6 months stay, unless specifically enforced in the passport.

Had the OP visited another country, other than the US, then the general provisions would have applied. Also, the visa exemption nearly signifies that an applicant can re-enter Canada on a expired visa, given that they are in Status (eg. an applicant entering Canada on a 5 year student visa continues to remain in status until another 8 years. Even though the visa is expired, the study permit is current, and when returning from US, the applicant will not be asked for anew visa, rather the study permit will be enough for re-entry).

Further,

• In none of my posts have I ever mentioned that VR is a document based on which one can enter Canada.
• regulation 190(3)(f) does not refer to specifically study and work permits, it refers to TRVs. It also does not refer to exemption from documents, which is covered in R190(2).

 

[legalfalcon]

So guys please let me know the best option:

1- Leaving Canada -> replying
2- Replying pushing back that she is in legal visitor status
3-Replying that legal visitor status offering that she can leave the country if they need

I'm preferring leaving over restoration since the PR may delay till after the restoration (which takes 3 months) while leaving the country ends the issue

If you are out of status, you can apply for restoration within 90 days pf losing the status or leave the country and provide a proof of the same.

Only if your partner was admitted into Canada, and generated 6 months status, can you claim legal status. However, you can request your documents and records and see what the status is or just request your MP to call IRCC or CBSA and verify the status for you.

 

[canuck_in_uk]

What you are referring to are general provisions. These general provisions would usually apply, but as per the rules of statutory interpretation, if a regulation addresses a specific circumstance, then it will take precedence over the general provision.

As per the original post the OP had the issue wherein, he reentered Canada while the DS was valid. The OP was admitted into Canada, and therefore the conditions of Regulation 190(3)(f) would trigger, "(ii) return to Canada by the end of the period initially authorised for their stay or any extension to it"

This regulation referred under R 190(3)(f) is for, Visa exemption — purpose of entry

(3) A foreign national is exempt from the requirement to obtain a temporary resident visa if they are seeking to enter and remain in Canada solely
(ii) return to Canada by the end of the period initially authorised for their stay or any extension to it"

At the port of entry, if a returning visitor, who was previously admitted and is still in DS, would be admitted into Canada for the same DS as originally granted if they only visited US or St Pierre and Miquelon. When a returning visitor falls under this category, they will not even be assessed for a visa requirement, given that they squarely fall within the regulation.

The DS expired when the VR expired, and thus the OP has to either leave Canada, or apply for an extension (will be on implied status until a decision is made in accordance with R183(5)).

This is why IRCC's response states that person in Canada is without valid status because OP was only admitted into Canada until "the end of the period initially authorised for their stay or any extension to it."

This is my understanding of the facts and the law, based on what OP's post suggested. However, in general circumstances, the re-entry would trigger a 6 months stay, unless specifically enforced in the passport.

Had the OP visited another country, other than the US, then the general provisions would have applied. Also, the visa exemption nearly signifies that an applicant can re-enter Canada on a expired visa, given that they are in Status (eg. an applicant entering Canada on a 5 year student visa continues to remain in status until another 8 years. Even though the visa is expired, the study permit is current, and when returning from US, the applicant will not be asked for anew visa, rather the study permit will be enough for re-entry).

Further,

• In none of my posts have I ever mentioned that VR is a document based on which one can enter Canada.
• regulation 190(3)(f) does not refer to specifically study and work permits, it refers to TRVs. It also does not refer to exemption from documents, which is covered in R190(2).

We agree to disagree.

R190(3)(f) does not confirm that a visitor re-enters on the previous status.

 

[PRapplicant1385]

Hi
I have not got any response yet for my PR application. I ordered GCMS notes in December and just received. It shows that Eligibility, criminality and security passed. Also, medical extended.

There is something called "other requests" for "Non-compliance" which is not started. It is related to the overstay of my wife. This activity was created before they sent the letter asking for her proof of status back on October.

Now, I have already replied that I believe that she had a visitor status since she left to USA and re-entered Canada as a visitor granting her 6 months of visitor status since her last entry. I also update her current country of residence explaining that she left back home.

Now, what if still CIC believes that she overstayed? would they be able to approve the PR application since she left Canada or we will be subject to refusal?

 

[PRapplicant1385]

@legalfacon @canuck_in_uk

Hi
I have not got any response yet for my PR application. I ordered GCMS notes in December and just received. It shows that Eligibility, criminality and security passed. Also, medical extended.

There is something called "other requests" for "Non-compliance" which is not started. It is related to the overstay of my wife. This activity was created before they sent the letter asking for her proof of status back on October.

Now, I have already replied that I believe that she had a visitor status since she left to USA and re-entered Canada as a visitor granting her 6 months of visitor status since her last entry. I also update her current country of residence explaining that she left back home.

Now, what if still CIC believes that she overstayed? would they be able to approve the PR application since she left Canada or we will be subject to refusal?

 

[canuck_in_uk]

Hi
I have not got any response yet for my PR application. I ordered GCMS notes in December and just received. It shows that Eligibility, criminality and security passed. Also, medical extended.

There is something called "other requests" for "Non-compliance" which is not started. It is related to the overstay of my wife. This activity was created before they sent the letter asking for her proof of status back on October.

Now, I have already replied that I believe that she had a visitor status since she left to USA and re-entered Canada as a visitor granting her 6 months of visitor status since her last entry. I also update her current country of residence explaining that she left back home.

Now, what if still CIC believes that she overstayed? would they be able to approve the PR application since she left Canada or we will be subject to refusal?

It is not a reason for refusal.

 

[PRapplicant1385]

It is not a reason for refusal.

Thanks alot
So what is this "non-compliance" activity and what is the worst case scenario? Sorry for lots of questions as it is a very stressful situation

 

[PRapplicant1385]

@legalfalcon

 

[legalfalcon]

@legalfalcon

If you have submitted all the documents, then you will have to wait for a decision. An applicant (primary or secondary) is inadmissible for the failure to comply with any provision of IRPA, which includes, temporary residents who don’t respect the conditions of their stay—for example, they stay longer than allowed, or work or study without the proper permits. <https://www.canada.ca/en/immigration-refugees-citizenship/services/immigrate-canada/inadmissibility/reasons.html>

And it is specifically mentioned in the regs:

Right of temporary residents

29 (1) A temporary resident is, subject to the other provisions of this Act, authorized to enter and remain in Canada on a temporary basis as a visitor or as a holder of a temporary resident permit.

Obligation — temporary resident
(2) A temporary resident must comply with any conditions imposed under the regulations and with any requirements under this Act, must leave Canada by the end of the period authorized for their stay and may re-enter Canada only if their authorization provides for re-entry.

This is not the end of the road. Even if you are inadmissible, you have options. However, this forum is not the place to get legal advise. Most members who post here have no formal training in immigration law, and those that do, just give their opinion based on the post, which made differ based on individual circumstances and the documents.