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Left Canada when a minor

dpenabill

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Apr 2, 2010
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Not saying that it didn’t make sense but having read the ruling I was guessing that it would be denied until the last few points.
Well, the appeal was denied for the two parents, and one of the two brothers. So a lot of the facts and circumstances discussed in the decision are about them. The youngest, the one who just turned 18, was treated separately given the timing of the PR TD application, very soon after he turned 18, and that was the gist of it. Denied. Denied. Denied. But allowed for the one who just turned 18.

I have paid very little attention to a lot of other immigration issues, including PR visa application issues. Years ago I paid quite a lot of attention to spousal sponsored PR visa applications, having been a sponsored spouse myself (one who benefited quite a lot from some heads-up info I got here and similarly in other forums, for which I was deeply grateful). But over the years I have narrowed my range of interests considerably. Thus, for example, I have paid little attention to visas and sponsored PR for parents and grandparents, and rather little attention to H&C cases other than in the context of relief for non-compliance with the PR Residency Obligation, or related matters (like the impact of eTA on PRs).

I also do not delve much into what policy should be. I spend enough time keeping up with what policies and practices actually are, how the process actually works (as best we can figure out), in relation to the few issues I do follow (which are mostly tied to grant citizenship eligibility and PR inadmissibility issues, like the RO).

As for the IAD and FC decisions, they are indeed interesting, often informative, but also often frustrating. In more than a few cases it is clear there were circumstances left unsaid but having a lot of influence. Sometimes the shadow of negative credibility looms large albeit not overt let alone explicit. But sometimes it is clear something else was influencing the outcome but it is not at all easy to discern what that was. And it has taken me many years to adapt to the way many terms are employed in Canadian law and I continue to be cautious about relying on what I think this or that term or phrase means (drives me a bit crazy when I see forum participants espouse opinions relying heavily on the meaning of words, given that when the meaning of particular words makes a difference, the particular words often have special meaning in the law which is NOT concurrent with the meaning of the word in general usage).

H&C cases are especially tricky and difficult to forecast. This is plenty true for H&C relief for PR RO non-compliance. And H&C relief for PR RO non-compliance is way more simple than other types of H&C cases. Indeed, while many of the factors are superficially the same, the context and application in the PR RO setting is very different than it is in other contexts. This forum tends to over-simplify how H&C reasons are considered in the PR RO context. I have expended quite a lot of effort to illuminate some of the complexities, and to especially caution that sometimes a factual circumstance can be a positive factor even though in most other situations that same factual circumstance will be considered a negative factor. Lots and lots and lots of It-Depends loom large in even relatively simple H&C cases.

Yes, sometimes the variable results may be attributed to the predilection of the individual decision-maker, and one can often find patterns in the decisions by particular individuals, both IAD and FC. But there is so much variability in the facts in individual cases, and so much flexibility in the standards for H&C analysis, there are bound to be outcomes which appear wildly different, perhaps even contradictory (like one removed-as-a-minor PR getting H&C relief in circumstances rather similar to another being denied H&C relief). Which is why I tend to disagree with posts in the forum, for example, that assert the outcome in a particular H&C case will be this or that for-sure. I am skeptical of even broadly quantifying the odds except in the most obvious cases, and even those often warrant a who-knows what is possible caveat.

One important distinction which seems to often be overlooked is the difference between before and after decision-making. Thus, for example, warnings about how difficult it can be to make a successful H&C case mean something very different, and should be taken very differently, for a PR who is NOT yet in breach of the RO and is weighing going abroad or staying abroad longer, versus the PR who has already breached the RO and is considering a course of action in attempting to save PR status. Thus, for example, I can offer some very strong cautions against taking the risk for the PR in the first of these situations, emphasizing how tricky and difficult H&C cases can be; but for someone else in very similar circumstances, but past tense (as in already in breach), I can focus on the positive elements in making the H&C case, in effect offering encouraging information about pursuing the H&C case (albeit rooted in realistic apprehensions as to more or less likely outcomes, which generally are NOT positive for PRs in breach of the RO applying for a PR TD or appealing a 44(1) Report).

In any event, I anticipate we will continue to see some rather wide variation in the outcome of RO H&C relief for PR's removed-as-a-minor cases . . . but we know enough now to caution that just the fact of having landed and being a PR will NOT guarantee a free pass later for such minor PRs, and that indeed, if the individual had rather minimal establishment in Canada the odds are probably against obtaining a PR TD.
 

darl500

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Jul 3, 2018
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Though we accept the decision, it is baffling to know that the decisions for approvals or non-approvals is solely dependent on the officer without any clear mandate. How is it fair? In one case a minor returning to Canada on reaching 18 years is allowed while in a different case is disallowed - when the circumstances, reasons and arguments given are same. The same conditions are met by both. The decisions are not consistent.

I guess the removed as a minor and returning back to Canada at the earliest possible chance (as soon as 18 years) does not stand a chance for PRTD approval any more on Humanitarian and Compassionate grounds. This is true, even if the minor may have spent a few years in Canada before leaving. This is my assessment for an application made by the PR for a PRTD personally (directly) without going through a law firm/consultant to apply. Maybe a law firm or consultant can make a strong case which may have a favorable approval of the PRTD. But this is still not 100% sure shot -

A 50-50 chance in my opinion.
 
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dpenabill

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Apr 2, 2010
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I guess the removed as a minor and returning back to Canada at the earliest possible chance (as soon as 18 years) does not stand a chance for PRTD approval any more on Humanitarian and Compassionate grounds. This is true, even if the minor may have spent a few years in Canada before leaving.
While we have no statistics and do not know for sure who is succeeding and who is not, there is little or no reason to doubt what I previously posted:

FOR EMPHASIS: There is NO reason to apprehend that the removed-as-a-minor PR H&C case, relative to a PR who actually was an in-fact resident in Canada, thus not merely one who had acquired the status of a PR, is much if any weaker now than it has been for many years. That is, to be clear, it still appears the removed-as-a-minor PR who was in fact established and living in Canada, for some appreciable period of time prior to being removed, probably still has among the more likely to succeed H&C cases for keeping PR . . . also dependent, of course, on how soon after emancipation or reaching the age of majority the young PR makes the effort to return to Canada.

NOTE: Still NO guarantees. Outcomes in individual cases can and almost certainly will continue to vary.
There is no reason to change that view based on your report:
Thank you all. The PRTD was not approved with a 60 days appeal letter. Not appealing. Case closed.
As I have attempted to illuminate before, H&C cases are not one-issue cases but rather depend on several factors and some interrelationships among those factors. In your family's situation, after all, there was a 15 YEAR ABSENCE from Canada with minimal establishment in Canada prior to that. Two factors which typically loom very large in the H&C analysis. The removed-as-a-minor is just one factor to be considered in context with those other factors.

Thus, this is NOT a fair characterization of how these cases are decided:
. . . it is baffling to know that the decisions for approvals or non-approvals is solely dependent on the officer without any clear mandate. How is it fair? In one case a minor returning to Canada on reaching 18 years is allowed while in a different case is disallowed - when the circumstances, reasons and arguments given are same. The same conditions are met by both. The decisions are not consistent.
There is some inconsistency, yes, and one can focus on the unfairness of that . . . but in the vast majority of cases actually the facts vary, and vary considerably. And there are several oft articulated H&C factors that are taken into consideration. Arguments based on being removed-as-a-minor may be based on that same fact and same argument, but the decisions will ALSO TAKE INTO CONSIDERATION OTHER FACTORS. Again, such as in your family's case, again there was a 15 YEAR ABSENCE from Canada with minimal establishment in Canada prior to that. Huge negative factors.

And as I have also noted, the consideration of such additional factors and concluding to not allow the removed-as-a-minor PR H&C relief is NOT so much a recent development as we initially apprehended . . . while I only cited two older cases with decisions reflecting this, as I also noted, one of those decisions has been cited many dozens of times:

Justice Barnes acknowledged that the young PR's "status in Canada may have been jeopardized by the decisions of her parents, but her claim to relief should not be enhanced by those parental decisions."

See Lai v. Canada (Minister of Citizenship and Immigration), 2006 FC 1359 (CanLII), http://canlii.ca/t/1pzzm

This decision has been cited by many dozens of other tribunals.

I cannot quantify the number of similar cases, but it is not difficult to find examples in which the removed-as-a-minor PR has been denied a PR TD and whose appeal is also denied. Example: Battu v Canada (Citizenship and Immigration), 2013 CanLII 99781 (CA IRB), http://canlii.ca/t/gj9bt . . . a 2013 case going against 19 year old attempting to return to Canada. This PR was removed, as a minor, after spending more than six months in Canada, including attending school in Canada for more than six months. PR TD denied. Appeal dismissed.
And while some individual officer discretion plays a role in how these cases have gone, it is absolutely NOT true that the outcome "is solely dependent on the officer without any clear mandate." No, it is based on well established principles, subject to review for abuse or error, with SOME individual officer discretion applied in how the various factors are weighed.

This is worth emphasizing. There is a structured fact-based, criteria-driven decision-making process. That is how it works. There should be little surprise that a PR who has never spent much time in Canada and who has not been in Canada for more than a decade is not given a free pass for the failure to comply with the clearly mandated PR Residency Obligation. Most of the surprises actually FAVOUR some PRs, when the PR is allowed to keep status in circumstances which push the envelope. Overall, and the Federal Courts have acknowledged this time and time again, the PR Residency Obligation is itself very liberal and flexible, and the manner in which it is applied tends to allow immigrants rather generous leeway.

In any event, for a PR who had a substantially established life IN CANADA before being removed-as-a-minor, there is no reason to doubt the long held conventional wisdom that there are good odds of H&C relief if the PR seeks to return to Canada relatively soon upon reaching the age of majority.
 
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scylla

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Though we accept the decision, it is baffling to know that the decisions for approvals or non-approvals is solely dependent on the officer without any clear mandate. How is it fair? In one case a minor returning to Canada on reaching 18 years is allowed while in a different case is disallowed - when the circumstances, reasons and arguments given are same. The same conditions are met by both. The decisions are not consistent.

I guess the removed as a minor and returning back to Canada at the earliest possible chance (as soon as 18 years) does not stand a chance for PRTD approval any more on Humanitarian and Compassionate grounds. This is true, even if the minor may have spent a few years in Canada before leaving. This is my assessment for an application made by the PR for a PRTD personally (directly) without going through a law firm/consultant to apply. Maybe a law firm or consultant can make a strong case which may have a favorable approval of the PRTD. But this is still not 100% sure shot -

A 50-50 chance in my opinion.
It's not baffling at all. IRCC assesses to what extent the family and children were established in Canada before leaving in making the H&C decision.

As dpenabill said above, you were gone for 15 years with effectively no establishment in Canada. There's no H&C case here - it's a convenience case.
 
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canuck78

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Though we accept the decision, it is baffling to know that the decisions for approvals or non-approvals is solely dependent on the officer without any clear mandate. How is it fair? In one case a minor returning to Canada on reaching 18 years is allowed while in a different case is disallowed - when the circumstances, reasons and arguments given are same. The same conditions are met by both. The decisions are not consistent.

I guess the removed as a minor and returning back to Canada at the earliest possible chance (as soon as 18 years) does not stand a chance for PRTD approval any more on Humanitarian and Compassionate grounds. This is true, even if the minor may have spent a few years in Canada before leaving. This is my assessment for an application made by the PR for a PRTD personally (directly) without going through a law firm/consultant to apply. Maybe a law firm or consultant can make a strong case which may have a favorable approval of the PRTD. But this is still not 100% sure shot -

A 50-50 chance in my opinion.
Think it became a well known fact that young people were getting approved when applying for PRTD with H&C because they were removed as a minor. I saw many more posts and many parents with plans to use this reason to secure PR for their children without ever attempting to move to Canada. Anecdotally I have seen many more denials in the past year. It was surprising that people with so little connection to Canada ever got approved in the first place. We now see many more refused and perhaps a few approved here and there. As previously noted your children and your family had very little connection to Canada and had not been to Canada for 15 years. It seems baffling that you would think your children deserved to regain their PR status. They essentially had the same connection to Canada as any 18 international student who had vacationed once in Canada.
 
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david1697

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Reminder: Still BEGGING for SOME SOURCE, ANY OBJECTIVE SOURCE of information (obviously government source preferred, but at this juncture any objective report will help) describing reasons for denying H&C relief to a removed-as-a-minor PR.



As is often the case, others able to express things far more simply than I can, @canuck78 has generally described what appears (by a good margin) to be the current approach.


BUT for further clarification . . . To be clear, the reason for the absence factor I describe above is NOT an argument, and definitely NOT my argument. It is merely a description of what is articulated in scores and scores of official sources.

I avoid presenting arguments as much as possible. My personal opinion does NOT count for much, and I make an effort to NOT rely on my own views much. (So no one should take it personally when I do not give much weight to other personal opinions either.)

I have grown lazy citing sources, for a couple reasons, but mostly so when I am largely repeating propositions for which I (and typically others as well) have previously cited and linked sources . . . such as the key factors I discuss in posts above. Moreover, my posts tend to be very long to begin with, often bordering or well into pedantic territory, which repeated citation of sources tends to further exacerbate.

In any event, I am mostly referring to what a wide range of sources reveal are the actual factors considered and how they are considered, relying extensively on IAD and FC decisions, but also taking into account sources like the relevant Operational Manuals but also considering anecdotal reports in forums like this.

Technically the most important factor, and the one most cited, is the "best interests of a child directly affected by the determination" factor (which is reiterated in literally many HUNDREDS of official sources), but in PR RO cases this factor tends, PRACTICALLY, to be a wash, the fact of the PR's absence tending to show the PR's absence is no great hardship to the child, or if the child is outside Canada, that it is no great hardship for the child to continue living outside Canada. (Again, to be clear, the latter is NOT my opinion but a paraphrased and condensed version of what is very often cited in official sources.) Which is to say this factor, the best interests of a child, generally has little impact on the outcome in at least a very large number of RO cases, probably the vast majority.

For the majority of PRs in breach of the Residency Obligation, the key factors which really make a difference (again, relying on sources, not my own opinion) are:
-- extent of the breach
-- extent of ties in Canada, which includes the extent of establishment in Canada
-- reason for the absence (what precluded the PR from returning to Canada sooner)

There are other factors. Some can make a significant difference if the above factors are a fairly close call. The PR's intentions, for example, can have significant influence if the nature of the breach is not too extensive and the reason for the absence is not overtly negative. For example, while it is not entirely clear, the H&C analysis discussed in many IAD decisions suggest more leeway is allowed the PR still short of the fifth year anniversary, in breach but making a good faith effort to make the move to Canada to settle to stay (a fairly strong showing of intent).

For example, in contrast to the good faith effort of the new PR (less than five years since landing), which appears to get some leeway, a very strong showing of intent to settle and stay supported by actually coming and staying, even for YEARS pending an appeal, often falls short if prior to the Report or denial of a PR TD the PR was absent for years and had minimal establishment in Canada. That is, the best intentions do NOT make up for an extensive breach. (Will try to mention one other potentially important intention factor below.)

But those three factors tend to make or break the H&C case:
-- the bigger the breach, the more negative weight that factor carries
-- the more ties the PR has in Canada, including being more established in Canada, the more positive weight that carries
-- the less personal choice there is underlying the reason for the absence, or the more compelling the reason to be abroad, the more positive weight that carries​

Again, I am NOT arguing the weight of these factors. I am describing how official sources actually interpret and apply the H&C analysis in PR RO cases.

Additionally, none of the factors are independent but, rather, are considered in relation to each other. A small breach, for example, can be offset by a less compelling reason (and contrary to the view of some here, this includes even personal choice factors, like attending school or staying at a job, potentially having some positive influence). For the removed-as-a-minor PR, the total lack of personal choice has undoubtedly been a dominant factor for many years, in large part totally offsetting the length of the absence.


As I have often reiterated, other than the rather obvious very-little-to-remote-chance cases (we see them, rather often actually), which are easy to forecast (they have little or no chance), it is very difficult if not impossible to quantify the odds in individual cases . . . with perhaps only a few exceptions.

One of those exceptions has been the removed-as-a-minor PR coming to Canada SOON after reaching the age of majority. Indeed, in the past some forum participants have expressed virtual assurance they will be issued a PR TD, while most have soberly said the odds are very good but acknowledge NO guarantee.

THERE REALLY IS NO EVIDENCE THIS HAS CHANGED . . . so long as the removed-as-a-minor PR was in fact REMOVED from Canada (as in removed from a life being lived in Canada) and is making a timely effort to come to Canada.

WHAT THE RECENT ANECDOTAL REPORTS reflect is that some young PRs who had relatively minimal establishment in Canada are denied a PR TD. In response to this some forum participants have proffered the proposition that this is actually a specific policy or practice. And they have proffered the rationale for this. Both making sense. And as you speculate, this may have been accomplished by the distribution of a directive applicable to these kinds of cases.

BUT this fails to offer much insight into what makes the difference.

For the eighteen or nineteen year old PR living abroad whose only life in Canada was a matter of weeks or few months more than five or ten years ago, and who otherwise has no significant ties IN Canada, the recent anecdotal reports tend to be bad news if they were planning on coming to Canada as a PR to study or even to live and work in Canada. There appears to be quite a large number of such PRs in the world.


SOME PARTICULAR OBSERVATIONS REGARDING PERSONAL CHOICE ELEMENT:



As a matter of law, in Canada, minors have no control over where they live. The lack-of-personal-choice factor is not even a question of fact until the young PR reaches the age of majority. This is why the removed-as-a-minor PR case has been one of the few situations in which it has been fairly easy to forecast very good odds of H&C relief. SO long as the PR did make the effort to come to Canada SOON after legally having a personal choice.

As for illness as a reason for remaining abroad, as I noted before this is actually a lot WEAKER reason than many apprehend. Whether it is personal illness (which can be treated in Canada) or the illness of a family member. Again, this is NOT MY OPINION. This derives from what official sources say in actual cases.

BUT THIS DOES BRING UP A POTENTIAL ISSUE WHICH I HAVE PREVIOUSLY MENTIONED: I have a strong sense (this is a personal view) that some young PRs might be making the application for a PR TD TOO SOON, BEFORE THEY REACH THE AGE OF MAJORITY.

As I noted before, we know (again based on what is decided in actual cases officially reported) that when a minor PR applies for a PR TD together with a parent PR (or similarly they arrive at a PoE together), if the parent's application is denied the child's application is (usually) also denied. And similarly, if the parent is issued a 44(1) Report at a PoE, the child is as well (unless there is a real difference in their cases, like the child actually has been in Canada while the parent has been absent).

So, back to my analysis -- If the child is making an application for a TD to return to Canada, while still a minor, that must be done with the parent's permission. If the child has the parent's permission to come to Canada, that may obviate or offset the lack-of-personal-choice element in being "removed" from Canada as a minor.

This is ONE I DO NOT KNOW . . . but have seen some indications that suggest watching for related information regarding this.
You'd hope there are people who read all you write, so it's not posted in vain.
 

Irfan Kakwan

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Sep 28, 2019
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My issue is related to it I want to ask that my family (Me, my wife, my son aged 5 and daughter 9 at that time) got PR status in 2005, we stayed there for six months (received our SIN cards), my father in mean time was diagnosed of prostate cancer in Pakistan, I had to come back immediately although I was well settled there in short time, my father couldn't make it and passed away, my mother was left alone and there was no one to take care of her. I had no option but to stay. Now my children aged 20 and 24 insists to go back to Canada, my daughter is a Certified Montessori Teacher, she will be finishing her graduation by fall of 2020, My son is in 3rd semester of bachelors and is a Certified Graphic designer. They under no circumstances want to leave their parents behind, me and my spouse have nothing more precious then better future of our children. Kindly suggest /advice how should I put up my case so that I stand better chances of approval.
 

canuck78

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My issue is related to it I want to ask that my family (Me, my wife, my son aged 5 and daughter 9 at that time) got PR status in 2005, we stayed there for six months (received our SIN cards), my father in mean time was diagnosed of prostate cancer in Pakistan, I had to come back immediately although I was well settled there in short time, my father couldn't make it and passed away, my mother was left alone and there was no one to take care of her. I had no option but to stay. Now my children aged 20 and 24 insists to go back to Canada, my daughter is a Certified Montessori Teacher, she will be finishing her graduation by fall of 2020, My son is in 3rd semester of bachelors and is a Certified Graphic designer. They under no circumstances want to leave their parents behind, me and my spouse have nothing more precious then better future of our children. Kindly suggest /advice how should I put up my case so that I stand better chances of approval.
Your only option would be to all attempt to enter via the US border and not get reported. The chances of this being approved are very low. It has been 15 years since you lived in Canada. You made your choice and decided that being in your home country and together was your priority. Technically your mother could have remained alone and you could have hired help or had help from friends and family. Does your mother have any family close by?
 

Pamelaluz84

Full Member
Sep 13, 2019
42
2
I left Canada at the age of 14, I want to go back to Canada, I am now 35. Obviously I’m too old to apply for a PRTD. I understand I have better chances in going through the US border. The question is how can my family come with me, my husband and 3 children. I want to live again in Canada and stay permanently. Help and guidance please
 

Pamelaluz84

Full Member
Sep 13, 2019
42
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I left Canada at the age of 14, I want to go back to Canada, I am now 35. Obviously I’m too old to apply for a PRTD. I understand I have better chances in going through the US border. The question is how can my family come with me, my husband and 3 children. I want to live again in Canada and stay permanently. Help and guidance please
 

scylla

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I left Canada at the age of 14, I want to go back to Canada, I am now 35. Obviously I’m too old to apply for a PRTD. I understand I have better chances in going through the US border. The question is how can my family come with me, my husband and 3 children. I want to live again in Canada and stay permanently. Help and guidance please
You will need to return to Canada and live in Canada for two years before you will be able to sponsor your husband and children for PR. If you want to try to save your PR status, you should be prepared to be separated from your family for 2+ years.

Of course this assumes you are not reported at the border for failing to meet the residency requirement. If you are reported at the border, then you will end up losing your PR status and having to leave Canada.
 

canuck78

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You will need to return to Canada and live in Canada for two years before you will be able to sponsor your husband and children for PR. If you want to try to save your PR status, you should be prepared to be separated from your family for 2+ years.

Of course this assumes you are not reported at the border for failing to meet the residency requirement. If you are reported at the border, then you will end up losing your PR status and having to leave Canada.
On top of that do you even have a SIN? Without a SIN you will not be able to work. The chances of getting reported are quite high given yoursituation plus as already mentioned you will be separated from your family.
 

Pamelaluz84

Full Member
Sep 13, 2019
42
2
You will need to return to Canada and live in Canada for two years before you will be able to sponsor your husband and children for PR. If you want to try to save your PR status, you should be prepared to be separated from your family for 2+ years.

Of course this assumes you are not reported at the border for failing to meet the residency requirement. If you are reported at the border, then you will end up losing your PR status and having to leave Canada.
SO what’s should I do. I don’t know which program to immigrate is best. I’m 35 years old, I only have high school and I can’t prove work experience because I have been working independently for years. Here in Argentina it’s tough, too much work payed cash and no proof
 

scylla

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SO what’s should I do. I don’t know which program to immigrate is best. I’m 35 years old, I only have high school and I can’t prove work experience because I have been working independently for years. Here in Argentina it’s tough, too much work payed cash and no proof
In that case you're in a bit of a tough situation and I don't think you will be able to qualify for PR under the current economic immigration rules with only a high school education and unable to prove you work experience.

Based on this, it sounds like your only option is to try to save your PR status by entering Canada through the US border and hoping you're not reported for failing to meet the residency requirements. You'll then have to live in Canada for 2 years straight before you will qualify to sponsor your family. You should assume it won't be possible for your family to come to Canada during this time (unless they already hold visitor visas to Canada).
 

Pamelaluz84

Full Member
Sep 13, 2019
42
2
In that case you're in a bit of a tough situation and I don't think you will be able to qualify for PR under the current economic immigration rules with only a high school education and unable to prove you work experience.

Based on this, it sounds like your only option is to try to save your PR status by entering Canada through the US border and hoping you're not reported for failing to meet the residency requirements. You'll then have to live in Canada for 2 years straight before you will qualify to sponsor your family. You should assume it won't be possible for your family to come to Canada during this time (unless they already hold visitor visas to Canada).
AND how can I get through without getting reported? Would I be holding a Us visa like my family?