Sponsoring my US boyfriend

[jayde]

I want to sponsor my US boyfriend and we meet the criteria of "conjugal partners", and from what I've read, that means I do not have to meet the minimum finanacial requirement. The issue though, is that he has an adult daughter (she is nearly 20) for whom he pays child support (while she is in University for the next three years). Does that mean he has a "dependant adult child" and does that change whether or not I need to meet a certain financial requirement? She is not joining him in Canada and therefore does not need to be sponsored, but from what I see, she has to be mentioned on the application. (I am hoping I read that right).

Thank you for your help

 

[YorkFactory]

The consensus on this board seems to be that you probably won't be approved as a conjugal partner if you could get married or live together for a year. Have you been unable to do either of these things?

 

[ariell]

The consensus on this board seems to be that you probably won't be approved as a conjugal partner if you could get married or live together for a year. Have you been unable to do either of these things?

Agreed. Your chances of getting a partner living in the US approved as a conjugal partner are very slim. You have no immigration barrier that would preclude you from being able to meet the 12 month co-habitation requirement for common-law partners. There are many posts on this board about the topic. Please read through that information carefully before you go ahead with a conjugal class sponsorship.

 

[BeShoo]

To be accepted as "conjugal partners" you need to be able to prove, first of all, that you've been living in a marriage-like arrangement for at least one year, even though you're not living together.

Secondly, you need to prove that it was impossible for you to get married or to qualify as common law partners by living together continuously for 12 months. Normally, only legal reasons are acceptable. For example, you couldn't get married because of divorce laws, or because gay marriages are not legal and/or you couldn't live together continuously for 12 months because it was impossible to get visitor status for 12 months.

Some immigration officers will want you to prove a barrier to marriage, though technically, they are not supposed to force you to marry if you only want to be common law. A rejection of this sort would probably be winnable on appeal.

So, you are left with proving that you couldn't live together continuously for a year. Although, Canadians and Americans can travel back and forth fairly freely, visits are normally restricted to a maximum of 6 months, though I don't really know that any law has that in writing. You might be able to leave for a day and then come back for another 6 months, but this is kind of against the spirit of the 6 month restriction, so that might not be allowed if you tried it and they were aware of the fact that you had just finished a 6-month visit. Although it's not necessarily written down, it's kind of accepted that spending more than 6 months out of a year in another country is more like living there than visiting.

Anyway, the best evidence to have would be something showing that a long-term visit was refused. Aside from that, it's a little hard to prove that you couldn't have just lived together continuously for one year. In theory, you can't, unless you have a work permit or something, but it's up to an individual immigration officer to decide whether it was impossible for you or not. Your job is to convince them that it was not possible.

 

[ariell]

Anyway, the best evidence to have would be something showing that a long-term visit was refused. Aside from that, it's a little hard to prove that you couldn't have just lived together continuously for one year. In theory, you can't, unless you have a work permit or something, but it's up to an individual immigration officer to decide whether it was impossible for you or not. Your job is to convince them that it was not possible.

Sorry but I disagree. In theory they can live together for one year. Because they can spend 6 months in Canada and 6 months in the US. You don't have to spend all 12 months in one country.

Jayde, I would suggest that you read through section 5.45 - What is a conjugal partner? in the OP2 Processing of Family Members Manual. This is the manual that the immigration officer will refer to when assessing your relationship. You can find the manual here: http://www.cic.gc.ca/ENGLISH/RESOURCES/manuals/op/op02-eng.pdf The manual is pretty clear that conjugal class is an exceptional category for those who cannot marry or who cannot live together for 12 months. You may be lucky and have an IO pass you through but my guess based on what you've written so far is that you simply do not meet the requirements of this category.

"This category was created for exceptional circumstances – for foreign national partners of
Canadian or permanent resident sponsors who would ordinarily apply as common-law partners
but for the fact that they have not been able to live together continuously for one year, usually
because of an immigration impediment. In most cases, the foreign partner is also not able to
marry their sponsor and qualify as a spouse. In all other respects, the couple is similar to a
common-law couple or a married couple, i.e., they have been in a bona fide conjugal relationship
for a period of at least one year....

CIC cannot require couples to marry in order to immigrate. However, if they are not
married, they must be common-law partners. There is NO provision for fiancé(e)s or “intended
common-law partners” in IRPA. If a Canadian and a foreign national can get married or can live
together and establish a common-law relationship, this is what they are expected to have done
before they submit sponsorship and immigration applications."

 

[jayde]

Well, the reason we could not live together for 12 months is because I have a son from a previous relationship who is part of a custody agreement which prohibits my relocation out of the Calgary area. I simply cannot take my children and move by order of the alberta family courts.

As stated, he could probably visit for six months however that would still not meet the 12 month requirement for common-law and I am unsure how he would be able to work while he is here, and he still needs to make a living because he has a child he continues to support while she is in University.

So, I do actually have a legal reason to not be able to meet the 12 month requirement, however I am beginning to worry that it is not a good enough reason. I would gladly relocate to the States if I wasn't legally bound here. My boyfriend is giving up a lot by moving here to be with me and my children.

Also, does his daughter require a medical exam even if she is not accompanying him? That's what I understood from the forms and everything I read. And my original question is still not answered... Since he still supports her while she's in university, does that mean I have to meet the financial requirements to sponsor him?

 

[BeShoo]

Sorry but I disagree. In theory they can live together for one year. Because they can spend 6 months in Canada and 6 months in the US. You don't have to spend all 12 months in one country.

That's a good point. I never thought about that, but if it was timed just right, that could work. Whether the immigration officer would think of that is an open question.

"This category was created for exceptional circumstances – for foreign national partners of Canadian or permanent resident sponsors who would ordinarily apply as common-law partners but for the fact that they have not been able to live together continuously for one year, usually because of an immigration impediment. In most cases, the foreign partner is also not able to marry their sponsor and qualify as a spouse.

I think that this category was primarily motivated by the problems of certain same-gender couples, but they can't really say that and it would be discriminatory if it did not also apply to hetero couples. I suppose it's a matter of interpretation just how exceptional the exceptional circumstances need to be. So, it depends on the Immigration Officer's determination on a case-by-case basis.

In the reasons for refusals, I've never seen an indication the "the circumstances are not exceptional."

Typical reasons are that they believe that the relationship is not genuine or that the parties are merely dating and not yet in a conjugal relationship, or that they haven't been in conjugal status for an entire year, but "could have lived together and didn't" is also a big one.

I gather that many of the refusals in this class are from people who have never met, even though they have carried on an Internet relationship for some time, or they can't show that they are financially interdependent, etc.

 

[BeShoo]

One more thing, from an early legal opinion at the bottom of page 3 in http://smith-hughes.com/papers/pdf_bin/Sponsorship-of-Same-Sex-Partners.pdf:

"The second element, that there is a compelling barrier to continuous cohabitation, is not a
statutory requirement and it is questionable whether it should apply at all if the couple is
able to satisfactorily establish that their relationship is conjugal. I would argue that it
may be a factor in determining whether a relationship is conjugal, although it is not a
prerequisite."

So it seems that the "compelling barrier" is not explicitly stated by the letter of the law.

 

[RobsLuv]

Well, the reason we could not live together for 12 months is because I have a son from a previous relationship who is part of a custody agreement which prohibits my relocation out of the Calgary area. I simply cannot take my children and move by order of the alberta family courts.

As stated, he could probably visit for six months however that would still not meet the 12 month requirement for common-law and I am unsure how he would be able to work while he is here, and he still needs to make a living because he has a child he continues to support while she is in University.

So, I do actually have a legal reason to not be able to meet the 12 month requirement, however I am beginning to worry that it is not a good enough reason. I would gladly relocate to the States if I wasn't legally bound here. My boyfriend is giving up a lot by moving here to be with me and my children.

Also, does his daughter require a medical exam even if she is not accompanying him? That's what I understood from the forms and everything I read. And my original question is still not answered... Since he still supports her while she's in university, does that mean I have to meet the financial requirements to sponsor him?

I'll answer this first because nobody else has, and then move on from here. His 20 year old daughter: a dependent is defined as the "child" of an applicant who is under the age of 22 and not married or in a common-law relationship. Even if he wasn't still paying child support, she falls within the definition of a "dependent" if she is not married or in a c/l relationship - so she has to submit to a medical examination (whether coming to Canada or not) and she also has to provide FBI and State criminal clearances because she is over the age of 18. This is where I will caution you. IF she has been in any trouble since becoming a legal adult email or PM me. I have experience with this stuff.

Financial requirements: there are no minimum income requirements for spousal/common-law or conjugal partners and their dependent children, as long as the dependent children have no children of their own.

For the rest of it - believe me, we agree with you - but they won't. You need to read through the definition of what a "conjugal partner" is in the OP2 Processing Manual - Section 5.44-5.47. The "conjugal partner" qualification is about CIC waiving the one year cohabitation requirement for common-law qualification because the couple is prevented from marrying (or living together) due to fear of persecution or immigration barriers that disallow them from marrying, or establishing a common-law partnership by living together. There are not very many, if any, US/Canadian couples who could not, at some point, get married. Even same-s*x partners are now free to marry in Canada - and divorce is not prevented in either country - so from CIC's standpoint, if you're Canadian and he's American, you CAN, at some point, marry. It makes no difference to them whether you want to marry or not, and even though a Supreme Court decision mandated that they cannot force people to marry in order to qualify to immigrate, they do require then that you establish a common-law relationship by co-habitating for at least one continuous year.

You DO have to qualify in the class you're applying in - according to their interpretation of the definition, and the biggest disadvantage any of us has is that we're not given an opportunity to discuss this, or argue our point, short of appeal (more on that later). They make the determination - there is no room for our viewpoint and no forum for even explaining why we think we qualify in any category. They don't care if we think we qualify - they decide.

Technically a US citizen is only allowed to stay in Canada for up to six months, and vice-versa, but they already know that they're not enforcing that - so they're not going to buy "immigration barriers" from a US/Canada couple. Basically, if you can marry, you're expected to do that . . . they don't really even care if you can't live together and they especially don't care if it's a financial hardship for one of you to live with the other and not be able to work. I've seen too many US/Canada couples refused conjugal partner sponsorships and it becomes nothing but a big money grab on the part of CIC. As far as winning on appeal - forget it. You probably could, but we had an application refused through Buffalo and it took us 2 years just to get to our appeal hearing - and now, having won, we have to wait for who-knows-how-long for Buffalo to reprocess our entire application. Another waste of time and money. You don't say anything about future plans to marry, etc., and nobody here is going to make that judgment but the reality is that if you do intend to marry at some point, do that first and then apply to sponsor him. You'll save yourselves a lot of headaches and heartache.

 

[jayde]

I really appreciate everyone's insight. I have to say I was more than a little disappointed last night after reading more in depth. Thank you Rob for clarifying some points I really was unclear on.

So... spouses can work in Canada but visitor's can't without a work visa right? Ugh this is so confusing.

 

[PMM]

Hi

I'll answer this first because nobody else has, and then move on from here. His 20 year old daughter: a dependent is defined as the "child" of an applicant who is under the age of 22 and not married or in a common-law relationship. Even if he wasn't still paying child support, she falls within the definition of a "dependent" if she is not married or in a c/l relationship - so she has to submit to a medical examination (whether coming to Canada or not) and she also has to provide FBI and State criminal clearances because she is over the age of 18. This is where I will caution you. IF she has been in any trouble since becoming a legal adult email or PM me. I have experience with this stuff.

Financial requirements: there are no minimum income requirements for spousal/common-law or conjugal partners and their dependent children, as long as the dependent children have no children of their own.

For the rest of it - believe me, we agree with you - but they won't. You need to read through the definition of what a "conjugal partner" is in the OP2 Processing Manual - Section 5.44-5.47. The "conjugal partner" qualification is about CIC waiving the one year cohabitation requirement for common-law qualification because the couple is prevented from marrying (or living together) due to fear of persecution or immigration barriers that disallow them from marrying, or establishing a common-law partnership by living together. There are not very many, if any, US/Canadian couples who could not, at some point, get married. Even same-s*x partners are now free to marry in Canada - and divorce is not prevented in either country - so from CIC's standpoint, if you're Canadian and he's American, you CAN, at some point, marry. It makes no difference to them whether you want to marry or not, and even though a Supreme Court decision mandated that they cannot force people to marry in order to qualify to immigrate, they do require then that you establish a common-law relationship by co-habitating for at least one continuous year.

You DO have to qualify in the class you're applying in - according to their interpretation of the definition, and the biggest disadvantage any of us has is that we're not given an opportunity to discuss this, or argue our point, short of appeal (more on that later). They make the determination - there is no room for our viewpoint and no forum for even explaining why we think we qualify in any category. They don't care if we think we qualify - they decide.

Technically a US citizen is only allowed to stay in Canada for up to six months, and vice-versa, but they already know that they're not enforcing that - so they're not going to buy "immigration barriers" from a US/Canada couple. Basically, if you can marry, you're expected to do that . . . they don't really even care if you can't live together and they especially don't care if it's a financial hardship for one of you to live with the other and not be able to work. I've seen too many US/Canada couples refused conjugal partner sponsorships and it becomes nothing but a big money grab on the part of CIC. As far as winning on appeal - forget it. You probably could, but we had an application refused through Buffalo and it took us 2 years just to get to our appeal hearing - and now, having won, we have to wait for who-knows-how-long for Buffalo to reprocess our entire application. Another waste of time and money. You don't say anything about future plans to marry, etc., and nobody here is going to make that judgment but the reality is that if you do intend to marry at some point, do that first and then apply to sponsor him. You'll save yourselves a lot of headaches and heartache.

You should add one thing, visitors are usually admitted for 6 months, and they can apply to extend their stay. Happens all the time, as long as they can prove funds and a reasonable reason.

PMM

 

[grettta]

So... spouses can work in Canada but visitor's can't without a work visa right? Ugh this is so confusing.

Foreign spouses can't work in Canada either without a work visa or PR status.