Extension denied while awaiting common law application (urgent reply requested!)

[squidrider]

Hello Everyone,

I’m new to this site so I apologize if this is a duplicate thread. I looked around a bit but couldn’t find anything that suited my specific circumstances. I’m hoping some of you can offer some guidance to the current situation my girlfriend and I are in. I’ll try to explain things as clear as possible.


Myself:

32 years old, male, Canadian citizen since birth
Victoria, BC


Girlfriend:

27 years old, Mexican citizen
Had been to Canada off and on in the previous couple years (had not known her during that time)
She came here in January 2009 as a visitor
She left Canada to go back to Mexico for 3 weeks in June 2009 and re-entered Canada in July 2009 just days before they instigated the VISA requirement. She was giving 6 months temporary stay until January 2010.



Our situation:

We originally met in August 2009 and began dating in September for a few months. She started living with me at my place at the end of November 2009 and then we moved into our own place in January (both of us are on the lease).

We submitted an extension for the temporary visitor VISA for 6 months in December 2009, went through the medical exam…etc. and got approval in March 2010 that permitted her to stay as a visitor until July 10, 2010.

We submitted another extension for 6 months in June 2010, as we were then going to submit for the common-law sponsorship once the 12 month requirement came in November / December.

We just received a letter on September 28, 2010 from Immigration refusing her extension on day 82 after the expiry of her status and stating that she must leave immediately.


Our questions:

What is the best thing for us to do now?

We understand that we have 90 days to apply for a restoration, however, we’re both pretty certain it would b e denied as the extension was denied. We were going to writ e on the restoration application that we wanted the status restored so we could then apply for the common-law in November.

We read on-line that she needs to have legal status before applying for the common-law sponsorship, but that may not be possible if they refuse the restoration.

Can we apply for the restoration and then immediately after apply for the common-law now even though we haven’t been living together for the 12months?

We definitely do not want to be apart, as if she were to leave to return to Mexico, obtaining a re-entry VISA is extremely difficult and very lengthy, could easily take 4-8 months. Plus then would we not qualify for the common-law status as we wouldn’t have lived to gether for 12 months if she goes back to Mexico?

Can we apply for the conjugal partner relationship because we haven’t lived together but have been in an interdependent relationship but don’t meet the common-law.


Sorry if this is bit long, but we are both very nervous about the situation and are hoping someone can offer some advice. We are seeking some free advice from the local Immigration society office, but the lawyer who works there is infrequently in and of course we only have a few days to submit the restoration, which we both feel is necessary.


Thank you for your time and reply,
Michael

 

[ljane79]

Wow,
I'm so sorry that all this is going on in your life right now. How stressful. My husband and I were going to apply as common law, but when we read the statistics we decided to get married, but we have been dating for 3 years. Would you two consider mariage? It would help your case significantly. Immigration takes mariage a lot more seriously. Just a thought.
LJ

 

[confusednscared]

Mhmm... tough situation you are put in. I am very sorry that it has to happen this way for you man. Been through that stage last year and it's indeed tough thinking about being separate from the one you love because of some stupid decision or law that comes in place.

My thoughts on this are:

- You have 90 days to apply for restoration? Is this from the date the letter was issued? If so, you should start acting on the paper work for restoration but don't submit it until the 90 days mark is close. Maybe around 70 days or so you should submit the paper work via express mail. By that time, we can assume that it will reach the office by December which will also take additional time to process and send out a decision. This can take you into Jan-Feb 2011 which will also mark you 1 year of cohabitation as common law providing you have the proof.

- It's harder to prove a common law relationship to CIC because of the complexity of the category. There is just so much paper work and additional evidence you must provide to CIC to meet their definition of common law. If you are serious about spending the rest of your life together with this chick then I would suggest marrying her. Now, this doesn't have to be the ideal wedding where you have to have 200 guests in attendance, etc. You can simply do a small ceremony at City Hall where you have a few close family and friends around to witness that you two got married. Then you can begin the Sponsorship process.

- The sponsorship process should be done outland at the Mexico office because of her current situation we don't know if CIC will grant her the restoration and for how long. That being said, inland apps take longer to process (2-3 years) before it's finalized. If the restoration is granted and you two are married she can wait out most of the processing time for her application in Mexico with you in Canada. If you can prove to CIC with concrete evidence that your relationship with her is real then she would not need to leave Canada to attend an interview in Mexico. They can grant finalize all her paper work via courier mail while she is still in Canada. Again though, providing the restoration is granted and she has some sort of legal status in Canada.

- If she gets rejected from the restoration, her file and information will be immediately sent to the removal department (CBSA) where they will take further action in trying to get her removed from Canada. This process can be serious crap if she doesn't abide with the standards set out to her by CBSA because her removal can lead into a deportation which pretty much says "You are banned from entering Canada unless you are granted written authorization by the Minister"

In a nutshell, get married to her and start working on the paper work to submit the application outside Canada. It's much faster and she stands a better chance applying outside of Canada.

Hope this helps and good luck to you both

 

[squidrider]

Thank you for the information. Proving the common-law partnership is something that we feel confident in doing, as we have many photos, friends witnessing the relationship, we travelled last Christmas across Canada together, we are on a lease together and have joint credit cards, as well, she has visited my family many times (Christmas, Easter, and other times just to visit) and even her cousin from Mexico came to visit and stay with us. So we feel that with letters and photos, and proving that we have lived together we could prove it.

We would have no problem getting married, as we both want to spend our lives together, however to make things even more complicated we are unable to get married as I am currently going through a divorce. The papers have just been submitted but there is a bit of time before a judge signs and then grants it, which could take a few weeks to 3 months depending. My separation from my ex all started months before my girlfriend and I even met, why does love have to be so complicated?!! Haha!!

We also did not want to get married just for the papers, because we both want to get married in Mexico and have our family and friends there, which we were thinking of doing in a couple of years or so. But of course if that was the only option then we would consider it of course, but that really isn't possible in the next weeks.

 

[buddhadimple]

Welcome fellow Victorian!

That's harsh. I've been looking it up and my boyfriend stayed in Victoria with me through a young person's (18-30) temporary one-year work visa but that is apparently only for citizens of common-wealth countries.

If you have 90 days, that's 3 months so will you have lived together for 12 consecutive months by then? You could apply then but you'd have to hurry as the application takes ages to put together. I'm not sure about this but someone mentioned once (and someone please validate whether this is true) that if you apply for a Visa like a Spousal Visa, then the foreign applicant has "implied status" to stay in the country until told otherwise? I could be totally wrong, it's just something I heard.

Otherwise, Victoria is a very seasonal place. If she doesn't have the pre-requisites to qualify as a skilled worker, you could contact farms, greenhouses, and places like the ferries to seattle or any amount of hotels to see if they will sponsor a foreign national. I've done loads of seasonal jobs in Victoria and many of them sponsor foreign nationals - although we're going into winter now. Still, I'm sure Christmas tree farms are looking for workers right about now, or Canada Post getting ready for the Christmas parcels. If she's willing to do something like that, it could buy you some time if you need it.

Don't really know what else to say. And anyone please feel free to correct me if I'm wrong on anything. I really don't know a whole lot about this - just throwing things out there.

 

[confusednscared]

Thank you for the information. Proving the common-law partnership is something that we feel confident in doing, as we have many photos, friends witnessing the relationship, we travelled last Christmas across Canada together, we are on a lease together and have joint credit cards, as well, she has visited my family many times (Christmas, Easter, and other times just to visit) and even her cousin from Mexico came to visit and stay with us. So we feel that with letters and photos, and proving that we have lived together we could prove it.

We would have no problem getting married, as we both want to spend our lives together, however to make things even more complicated we are unable to get married as I am currently going through a divorce. The papers have just been submitted but there is a bit of time before a judge signs and then grants it, which could take a few weeks to 3 months depending. My separation from my ex all started months before my girlfriend and I even met, why does love have to be so complicated?!! Haha!!

We also did not want to get married just for the papers, because we both want to get married in Mexico and have our family and friends there, which we were thinking of doing in a couple of years or so. But of course if that was the only option then we would consider it of course, but that really isn't possible in the next weeks.

Don't you have to wait for your divorce to go through first before you begin to sponsor? I think you should get professional advice on this. It may raise problems with CIC for you :S

 

[squidrider]

Thank you for the replies, it is much appreciated.

Hello to you to fellow Victorianite!! (?)

We are not certain if the 90 days is from the day of the last extension expiry which was July 10th or from the date of the letter September 23rd. If it's from the date of the letter then yes 90 days would give us more than enough time to apply for restoration and the common-law application because that would into December.

We also had been informed that you have "implied" status once you make your extension application until you hear otherwise. Now we're not sure if it's similar with a restoration in that once we apply she will have "implied" status until we hear back. And if that process takes as long as the extension process which is usually 2-3 months.

As far as the divorce being finalized, as far as I understand having the divorce finalized only really permits me to be married again, as we have been separated since April of 2009. And I may be wrong but a separation without divorce still permits a person to have a common-law relationship (for immigration purposes or otherwise). We are seeking professional advice and hopefully will be able to discuss this with someone very soon.

 

[RobsLuv]

Sorry this is happening to you guys - but restoration of status will not work for you. That's for when someone has not applied to extend their status in time, and lost it, and needs to apply to restore. Your partner applied and was refused - end of story.

Unfortunately, the reason her extension was refused was because she is not yet an eligible PR applicant - because you are not qualified common-law partners yet. If you had managed to co-habitate for at least one year before her status expired (or if you had been able to marry), then she would be an eligible PR applicant and they would have extended her status based on that. But your situation, as it stands right now, looks as though she is living in Canada with you in an attempt to become a qualified PR applicant . . . and that messes with "trying to gain advantage under the Act". So your thought to use that as a reason to have the extension (or restoration, if that was available to you) approved is actually what gets you into trouble. They are within their rights to refuse the extension.

Because you can't get married yet, the only choice - it seems - is for you to leave with her and continue your co-habitation in Mexico so that you can then apply through the outland process for her PR. If you can't do that, you'll have to wait until your divorce is finalized and you can marry - do that - and then apply. Either way, she can't remain in Canada, and it's unlikely that she'll get another TRV because of her relationship to you and the fact that she applied to extend status instead of going home - that indicates that she has no ties to home and no intention of going back.

Applying outland - if you submit all of the evidences of your genuine relationship AND your common-law qualification (if you don't get married), and there are no issues with her application like children from a previous relationship, etc., you can expect to be finalized somewhere around about 8-10 months after you submit the application. Be careful, though, about the difference between proving common-law qualification and proving your "genuine" relationship. Earlier you said you "feel confident" in proving the common-law qualification - but your "list" included things that speak to the "genuine relationship" piece, not the common-law qualification. You need to be sure you provide sufficient evidences of BOTH, so I suggest that you read through the list of qualifications for common-law partnership in Section 5.34-5.36 of the OP2 Processing Manual.

Can we apply for the restoration and then immediately after apply for the common-law now even though we haven't been living together for the 12months?

No, you can't - you have to have been co-habitating for at least one continuous year before you're eligible to submit a common-law PR application. And even if you could apply for restoration, applying BEFORE you submitted the common-law application would simply result in another refusal anyway.

We read on-line that she needs to have legal status before applying for the common-law sponsorship, but that may not be possible if they refuse the restoration.

Technically she doesn't have to have valid temporary status in order to submit an inland PR application once you reach the common-law qualification, but you're looking at the application requiring special handling because of her illegal status and that almost always results in processing being delayed (and the applicant being in stuck in Canada without the ability to work, have healthcare, etc) for up to a couple of years. Outland processing is always faster and has no residency requirement - so regardless of what you do about the temporary status situation, don't lock yourselves into waiting more than 2 years for her to finally have valid status again. Also, if you apply inland, she can't leave Canada without forfeiting the application, and you have no right to appeal a refusal, either.

We definitely do not want to be apart, as if she were to leave to return to Mexico, obtaining a re-entry VISA is extremely difficult and very lengthy, could easily take 4-8 months. Plus then would we not qualify for the common-law status as we wouldn't have lived together for 12 months if she goes back to Mexico?

You're right - unless you go to Mexico with her and continue your co-habitation, you won't qualify as common-law partners because it's highly unlikely that she will ever get another visit visa. Now that they know that she is in a relationship with a Canadian citizen, and that she applied twice to extend her status while she was in Canada, it's clear to them that she intends to apply for permanent status and that she has no ties to home. In order to get a TRV, she has to prove she has significant ties to home and that she only intends to remain in Canada temporarily, and she can no longer do that.

Can we apply for the conjugal partner relationship because we haven't lived together but have been in an interdependent relationship but don't meet the common-law.

You can try, but it's an uphill battle. The conjugal partner category is about waiving the co-habitation requirement and allowing partners to qualify as common-law partners under immigration law because they are being prohibited from co-habitating . . . either due to immigration barriers that prevent them from living in each others' countries, or due to fear of persecution because of the nature of their relationship. There must also be a piece where they are unable to marry - and you waiting for your divorce doesn't count.

I'm afraid that you're really caught between a rock and a hard spot and the only way you guys are going to speed this thing up is to get married as soon as your divorce is finalized, so you can apply to sponsor her outland and she can come back to Canada when the application is finalized . . . unless, of course, the both of you are satisfied with her hiding out in Canada with invalid status until such time as you can get qualified as common-law partners and submit (still) an outland PR application. I seriously don't recommend that you put yourselves in the situation that applying inland would put you in. Being stuck in Canada for years on end (legal or not), waiting for them to finally give you PR really sucks. It's very hard on the relationship, the emotions, the finances and your sanity and I wouldn't wish it on my worst enemy.

 

[squidrider]

RobsLuv,

Thanks for the info.

While staying in Canada without being able to work and leave to visit her family is definitely not an ideal situation, it's really the lesser of two evils (much much lesser), as the alternate is for her to leave, and with my job and income it would not make sense to leave when we are intending to live in Canada. Her not being able to work isn't a problem, the only part that is hard is that we aren't able to go back and visit her family. Although they could have the opportunity to come here and visit. Giving the circumstances having her stay here and wait 14-24 months before being able to go back is definitely something we are willing to do. I appreciate that there are more limitations doing it that way.

Is that a rule that the restoration application does not apply? I've looked online, but there's a mounting of info and it didn't seem to indicate that if your extension is refused you can't apply for the restoration. I also read online that it appears that the loss of status is from the notice date, which is September, if that's the case then could it not permit us to wait until later in the 90 day period to apply and which case our PR application would be submitted also, giving a much better chance of being approved to stay?

see link below.

roadtocanada.com/forums/printthread.php?tid=2574


Thanks again.

 

[RobsLuv]

Good link - question posted by me way back then, by the way, but for someone else so I didn't even remember this! Great sleuthing!

I think the most important part of the whole conversation is what lindsayvj had to say about her and her husband's personal experience with this. So it looks like applying inland is a good alternative for you - the question I have is that the difference between this case and yours is that they were in a position to apply for PR, while the two of you still aren't. But if the 90 days starts at the date of the letter - which is seems is does - then you will have qualified as common-law partners before the deadline to submit for Restoration. If this is true, my advice would be that you get to work right now getting all the PR forms filled out, your evidences ready, and get her medical done and her criminal clearances ordered, so that the day after you qualify as common-law partners you can submit the inland PR application, get confirmation of delivery, and then submit the Restoration application with proof of the PR ap being submitted. I understand why lindsayvj's partner was told to apply separately for the Restoration of Status - that's because CPC-Vegreville won't even look at your PR application for at least 8-9 months . . . so they could miss the Restoration ap entirely. File that separately, with proof of the common-law qualification and the PR ap being submitted, and hope for the best. Good luck - I hope it works out for you.

 

[canuck0469]

squidrider,
you mentioned that you have been seperated since April 09, you can take your divorce application into a Family Court Judge and request that they expedite the divorce proceedings due to your upcoming marriage. You are required to be seperated for 1 year before making application so you should certainly qualify. Give them a date you require it by and they should help you. I had the same problem, hired a divorce lawyer ($600 cdn), had it expedited and recieved my divorce certificate within 3 weeks. Nail biter though as it was 16 days before our marriage was to take place.

 

[matthewc]

Good question about the 90 days. I'm not sure, but this is worth figuring out as it has an impact on the choice squidrider makes.

If someone applies to extend their status before their current status expires, then we know they have implied status until a decision is made. However, when the decision is made, if negative, does the lack of status begin immediately, or it backdated to when their original status expired.

I'm really not sure what the answer is.

Either way, if it's most important for you to stay together and you need to be in Canada for work, from what you've said it sounds like inland - through the spousal public policy if necessary (which allows inland apps from out of status applicants) - might be the best option.

 

[matthewc]

OK, I checked in the regulations and it is quite clear. Implied status is not removed retroactively:

http://laws.justice.gc.ca/eng/SOR-2002-227/page-5.html#codese:183-ss:_5_

Extension of period authorized for stay

(5) If a temporary resident has applied for an extension of the period authorized for their stay and a decision is not made on the application by the end of the period authorized for their stay, the period is extended until

(a) the day on which a decision is made, if the application is refused;

So, she has 90 days from September 28 in which she can apply to restore status. That's good news, as that is long enough to get the common-law application in. Technically they could try to remove her from Canada before then, as she's in Canada without status, but unless she gets arrested or something, that's unlikely.

Here's what you can do.

1. Get the entire common-law application ready to go, all the evidence compiled, fees paid, all police certificates ordered.
2. Wait until the anniversary of the date you moved in together, around the end of November.
3. Submit two applications together, in the same envelope, to CPC-Vegreville.

(a) Inland common-law PR application.
(b) Extension of stay as a worker INCLUDING restoration of status. Write "To be processed after first stage approval" on the top of the work permit application.

Since late November / early december is less than 90 days after she became out of status, the restoration application should be approved. Even if her status is not restored, she should still get the work permit.

Be sure to include the fee for the open work permit AND restoration of status on the fees receipt.

Finally include a covering letter for the open work permit application explaining specifically why she is eligible to restore her status, including the dates. If you don't, they will likely look at the date her previous extension expired, and get this wrong. They decided I was out of status at one point when I wasn't - they make mistakes about this stuff. Refer to the regulation which makes it clear when her status expired, and make it chronological and easy for them to understand, with exact dates. Something like this:

"I entered Canada on July XX, 2009.

I applied for extension of my stay as a visitor on December XX 2009, and this was granted on March XX 2010, allowing me to stay until July 10, 2010.

On June XX, 2010, I applied to extend my stay a second time.

On July 10, 2010 my first extension ran out. A decision had not yet been made on the second application, therefore I had implied status as a visitor, as per R183(5).

On September 28th, 2010, the application to extend my stay as a visitor was refused. As per R183(5)(a), this is the date I was first out of status.

90 days from the day my status expired is December 27, 2010.

This application is being submitted on November XX / December XX, 2010. It should be received before December 27, 2010, and therefore I am eligible for restoration of status.

NOTE: This application accompanies an application for Permanent Residence under the common-law partner in Canada class. It should be set aside and processed AFTER approval in principle is granted on that application."

You get the idea. Spell it out for them.

Note, that with this route, she will technically be out of status until they process the PR application to first stage approval, restore her status and issue the work permit. That should be OK though - having the inland application in process means they won't try to remove her from Canada. Definitely she shouldn't leave Canada, though - please be clear about that.

Good luck,
Matthew

 

[GT25]

Hi I know what you feel right now! I'm Mexican too and being sponsored by my partner right now, I'm still in Canada and scared to leave because we don't want to be apart! Just and advice I'm a lawyer in Mexico and I'm not sure about Canada but you can't have 2 relationship at the time and since you are still married you can't sponsor your current partner until you have a resolution from a judge you are officially divorce unless I'm wrong so just check that because it could hurt your application, for now I would do the restoration of status for your partner! Good luck!

 

[matthewc]

As long as the marriage has broken down and the spouses have lived apart for long enough for a genuine common-law relationship to be established (at least 1 year), Canada allows you to sponsor a common-law partner even though you're still legally married. See OP2 section 5.38:

http://www.cic.gc.ca/english/resources/manuals/op/op02-eng.pdf