Sponsorship vs work permit extension

[nzandcanada]

HI There,
I am a Canadian citizen and my partner is from New Zealand. He came here to live with me last year on a working holiday visa. It is about to expire in October and we want to choose the best course to move forward. Unfortunately our options seem very limiting and we're not sure how to move forward.

From what I can tell these are our options:

1 - His work helps him to extend his work permit - they are a small business who has never done an LMO before and we are quite concerned they won't pass as his job is not a high skilled occupation --- How hard is it to get this?

2 - I sponsor him as common law inside of Canada- he has to get lots of supporting documentation including criminal record checks that could take more time then we have... so we'll likely have to apply with an incomplete application - also from my understanding this process takes at least 2 years during which he is not allowed to leave Canada - he has not been home in nearly 3 years (we met in the UK), so this isn't really an option. We want to go visit his family there this xmas (and hopefully get married there in the next year).
The pro of this is that he would have an open work permit during this process and be able to work in Canada

3 - I sponsor him as common law outside of Canada - same situation with the supporting docs but we'd probably go there for xmas and apply after so more time to get them -- my understanding is that this takes approximately 10 months to process... during which time we'd have to be apart as he would not be able to work in Canada.

I have called immigration (and successfully got through 3 times out of the 8 tries... they hang up if they are too busy) to get all of this info. I still have a few questions in addition to those above and I was hoping someone here could help. I've read through some other topics on here and there is a lot of good information!

Could we apply for sponsorship and the work permit extension through his employer at the same time? That way if they don't pass the LMO we still have an application that will continue his work permit... he just won't be able to leave Canada. Also, if the employer gets the LMO will it hurt our chances in the future for spousal sponsorship if we withdraw our application?

If the employer gets the LMO approved and we decide to apply for spousal sponsorship next year, will he get an open work permit at that time? Or will he be tied to his employer with that work permit until the spousal application is processed (2 years)?

Can he leave an re-enter the country with his employer-sponsored work permit? or if we did outside of Canada sponsorship? - I believe its yes in both cases.

Thanks so much for any help you can provide!

 

[Leon]

1. The employer has to show that they have advertised the job and found no qualified Canadians or PR's who wanted it. Also, they must be offering whatever Service Canada thinks is market rates. They can sometimes be hard to get and it can take a couple or a few months. You really should have thought about this a bit earlier.

2. To buy time, he could apply to change his status to visitor stating that you are about to apply for common law sponsorship. He would not be allowed to work as a visitor though. If you apply inland, it takes 11 months to get first stage approval and another 9 to get the PR. He will not get an open work permit until he gets the first stage approval so there is almost a year that he will be sitting around at your house, not working. Leaving Canada is not recommended when applying inland but not so bad for him being visa exempt. The only problem would be if for some reason he is unable to enter Canada again. You would then lose the application. Also if he is outside Canada for a long time, say he gets tired of not working and decides to get a job in NZ for a while. If you have applied inland and they find out he is no longer living in Canada, you lose the application.

3. Applying outland does not mean he can not be in Canada visiting during the processing.

My advice, get the employer to apply for the LMO and start working on your sponsorship application now. If nothing is in place by the time his work permit is about to expire, apply to change his status to visitor based on your intent to apply to sponsor him. If the LMO comes through, great, if it doesn't, not so great but in any case, you should send in your sponsorship application when you are ready.

I do not know why you would want to withdraw the sponsorship application if he gets the LMO. I think it would look bad to immigration. In any case, working on his work permit while you wait for sponsorship to go through means that he can at least work while he waits.

With a regular work permit, he can leave Canada for vacations. If you get the LMO and then want to apply inland, he will qualify for an open work permit when he gets his first stage approval like everybody else.

If you want to apply inland and for an open work permit, I do not think he gets implied status for his work permit unless he applies while his work permit is still valid and if he leaves the country during his implied status period, he can not continue working after he re-enters.

Read about implied status here: http://www.cic.gc.ca/english/resources/manuals/op/op11-eng.pdf on page 27

 

[nzandcanada]

Thanks for your thoughtful feedback!

1. He just started working there again this week. He was working there for 3 months until April (6 months before it expired!) and asked about work permit extensions. At that time they refused to sponsor him because it was too much work for them. So he left in this tough job market and tried find another one that would sponsor him... unfortunately no luck. Since he's been gone they've had many unreliable replacements and so now they are keen to help him - however not saavy on the process or with computers for that matter. We're doing our best to help them and get through... but concerned about leaving our chances up to them.

From what I gather, you think we could apply for the sponsorship and the work permit extension simultaneously. Correct?

The only reason we would withdraw the sponsorship app in the event that there is an approved LMO is that then he could leave the country for a holiday, as this is possible only with the work permit.

I'm a bit confused about your advice to change to visitor status while waiting for the LMO. I've read that he can apply to extend his work permit with a cover letter stating that the LMO is being processed. So he could have implied status and work until the result of the LMO, if it is negative. This is likely how we'll proceed. The bad part is that we'll lose the chance to get implied status with the sponsorship application, because the work permit would expire before we hear about the LMO.

The major drawback of an inland sponsorship is not being able to leave Canada for a holiday. He's been away for a very long time and rightly so, wants to see his family again (and wants me to come visit his home for the first time) before committing to another long length of time here - which is smart because it means I can get mat leave when we want to start a family in a few years (which i wouldn't get in NZ). Lots of planning happening... just no clear way to get there yet.

The major drawback of the outland sponsorship, and changing his status to visitor is not being able to work. He's been out of work for periods of his year in Canada. Its been tough on him. So that means being apart for most of the next year if we want to work.

Its a tough decision! I think we've established that not being able to work and not being able to leave the country are not feasible options for him... so worse case scenario its an outland sponsorship and we're apart.

Thanks for your help!

 

[Leon]

I am only saying if his status is expiring and you still have nothing in place, not applied for anything, then he is not under implied status and then it would be an option to change his status to visitor if he still wants to stay. Otherwise, after his status expires, he would have to stop working and would have a 3 month grace period to either restore his status or leave.

You can find some LMO info here: http://www.hrsdc.gc.ca/eng/workplaceskills/foreign_workers/index.shtml There is a thing called concurrent processing where he applies to extend his work permit based on that the LMO has been applied for. You can read about this here: http://www.cic.gc.ca/english/resources/manuals/bulletins/2012/ob152A.asp :

For inland processing, the concurrent processing option will only be allowed for foreign nationals whose work permits will be expiring within two weeks at the time of application. They must provide proof of a valid job offer, as well as proof that the employer has submitted a request to Service Canada for a new LMO. Applications will be initialized and the processing fee will be processed. Applications will be held for two months from the date of receipt, after which a determination to either refuse or approve the work permit will be made.

In order to be under implied status, he must have applied for a work permit extension before his work permit expires but according to the above, he must wait until his work permit is 2 weeks away from expiring before he can apply because otherwise he would not be eligible for concurrent processing.

The above is completely unrelated to your common law sponsorship application. They are two different application.

For the sponsorship, like I said before, it is not forbidden to leave the country if you are applying inland but you must be residing in Canada so you can't be gone for months. The main problem with leaving during inland is for people who are not visa exempt and may find themselves in their homeland, being refused a visa to go back to Canada and therefore losing their application. Because he is visa exempt, that is not an issue. IMO it would not be advisable if you apply inland to withdraw your application just to go on vacation. I think it would cause red flags with immigration. Aside from that, you don't have to apply inland. You can apply outland even if he is in Canada working on an LMO. He would have his PR before his 2nd work permit expires.

 

[nzandcanada]

Thanks! Each time you write its very helpful!

I have spoken to a lawyer through my work prior to this and to immigration. Both said exactly what you said, its not forbidden, but strongly recommended that he does not leave the country with an inland application outstanding. I think we're both afraid to take this risk.

I have another friend who is a high skilled worker from nz. She just went through the LMO process with work and was approved... however her work has immigration lawyers and did everything for the LMO. I found out the info about implied status from her as she had this for about a month while she was waiting to hear back about the LMO result. She also had to wait until 2 weeks before her visa expired to reapply and wasn't allowed to leave the country during the process. So all of the info you gave me helps me to fully understand this in our case.

I'm very interested in your last comment. I noticed you mentioned it earlier as well... that we could apply for outland even while he is working in the country with this work permit. That would be the best option in our case! It seems strange though. Wouldn't they question why we aren't applying inland if he is living here?

Thanks!

 

[Leon]

It is his right to apply in his home country if he so chooses. Many people do this because outland is generally faster.

To apply inland, a person must be residing in Canada. To apply outland, they can be anywhere.

 

[nzandcanada]

Thanks!
Yes the outland seems like the best option for us. I have a couple more questions from your last response.

He has British citizenship as well. Last year he was working in the UK before he moved here. It seems better to process the outland in London, which is far closer than Sydney (the office for NZ) and currently has the same processing time (8 months). From your post it looks like that would be doable, correct?

Also, we have been living together since he moved to Canada in Oct 2011. We're likely going to go to NZ in Dec 2012 to see his family for xmas. We submitted the LMO and the work permit extension, but its likely his employer won't get through as his job is considered low-skill and could potentially be filled by a Canadian. Therefore he'll likely stay in NZ and go over to the UK while waiting for the outland sponsorship as he can work legally in both of these countries.

So we are officially common law in Canada as of Oct 2012, and will continue to live together until we hear about his work permit. We have signed a lease for a new place as of Oct 2012 that is for one year, so he has a home here, but likely he'll have to be out of the country to work for most of the application process and when he's here he'll have visitor status.

Would the sponsorship still be ok as common law even if he's out of the country to work for several months? If its better for him to stay and just be a visitor, then we'll have to do that, but obviously its better for him to be working for financial reasons (and his sanity!). We don't want to be apart, so the UK seems like a more reasonable and financially feasible distance to be apart for a few months.

 

[Leon]

Yes, it is ok to be apart for a bit as long as you are common law for 12 months or more when you apply. They can not expect him to sit around on a visit visa and wait for his application. Besides, it is only for a few months. Take for example live-in caregivers who come to Canada to work for 2 years before they may apply for PR. They can also include their common law partners they had at the time they left their home country to work in Canada. However, by the time they apply for PR, they have been living separately from their partners for 2+ years.

 

[nzandcanada]

Ok that's a relief! We actually do want to get married in 2013 once he's able to be back here working. We didn't want to have to rush to get a legal marriage just so we could apply for PR. So common law is the best option for us.

He could apply using the UK office too? Right now he's a British citizen but not a British resident as he hasn't lived there for 3 consecutive years. Our first plan was to do the working holiday from there, then do the NZ one, but as he didn't qualify in the UK, we had to use the NZ one year non-renewable working holiday visa.

London would make the most sense as its much closer to here. However, his work permit is in his NZ passport and this is what he has used to stay in Canada for the year that qualifies us as common law.

 

[Leon]

He may choose his country of nationality for his processing and since he has two, he can pick either one. Even if they do end up sending it to NZ, the processing time is the same and it is unlikely that he will have to go there. Only if they want an interview.