Total Headache.

[woe]

So, today I got in the mail:

"This refers to your application for restoration of TR status and a visitor record. Your application as requested is refused.

An application for restoration must be made within 90 days after loss of temporary resident status. Your temporary resident status expired May 29th, 2009. You are not eligible for restoration of your temporary resident status because your application was submitted after the regulated 90-day period that expired August 27th, 2009. Since you no longer hold temporary resident status in Canada your application for a visitor record is also refused."

Here's the issue.

I (American) entered Canada with my wife (who is Canadian) on May 24th 2009. The border officials gave me crap, blah blah blah, and gave me a five day visitors visa. I called CIC and spoke to two different people who told me to apply for an extension on my visitor's visa, and as long as I sent it in before the 29th everything would be hunkey dorey. Shoulda known most of the time they don't even know their own laws. I overnighted the money and application the next day.

On August 25th, 2009 I received a letter telling me that I needed to pay $125 to restore my temporary resident status. It said, "You have ninety days" to send in the $125. Considering my wife was supporting me while we were gathering up money for the PR application, it took us sixty days or so to be able to get the money, since during the time we moved into a new apartment. Today I get the letter above. Apparently they expected me to be able to send $125 dollars from Ontario to Alberta within a day and a half, considering we got our mail around 4 PM. Even over nighting it gets it there in two days. Nothing said "you have ninety days from the day you got here" or even hinted towards that at all. We 100% thought that for whatever reason, we had ninety days from the letter to send in the money. Now looking around online I see that you have 90 days from when it expires, although the letter didn't say that and I didn't think that I would have to research the letter further for hidden messages.

My wife and I have the PR application ready to go this very instant but I'm not sure what to do from here. In one thread, the answer is basically "too bad, you gotta go" when someone's visa extension was declined. But in another thread where the hubby has overstayed his visitor's visa by two years everything seems a-okay as long as he's planning to file for PR. I would link to them but I either can't figure out how or it's not letting me. It's late and I've been filling out paperwork for 7 hours, too - so that could definitely be it.

I know something happened in 2005 that seemingly allows spouses who do not have legal status to stay in Canada while their applications are being processed but I'm not 100% clear on it. Returning to the US is simply not an option. This is my home and family and I personally don't believe the mistake was on our part at all. Even though we have struggled, we have done everything by Canada's laws - I don't work, we've paid and sent in everything that we thought we needed to. Although I don't want to cheese off CIC any more than I apparently already have, I'd like to dispute this ruling.

This is just a complete and total headache and I'm not sure where to go from here, especially with the conflicting advice on the boards. Any imput is appreciated but "too bad, go home" isn't an option.

 

[grettta]

I (American) entered Canada with my wife (who is Canadian) on May 24th 2009. The border officials gave me crap, blah blah blah, and gave me a five day visitors visa.

Why did the border official give you a hard time? I've never heard of an American being granted anything less than the usual 6 month visitor status. Did you overstay in the past?

 

[woe]

I've never overstayed in the past. It may be because they had given my wife a hard time before that and issued her a one month visitor visa. They thought she was trying to move to the states, even though she had only visited twice the previous year and she HAD to resume schooling in less than five months or lose everything she was working towards. I think we just ended up getting the wrong guard at the wrong time. Apparently it doesn't matter if you're gay or not at the border, but I've heard that plenty of times from plenty of places where it does in fact play a big part. : So, I don't know, really. I didn't come up with a car full of stuff or anything and have never had an issue before.

 

[grettta]

It may be because they had given my wife a hard time before that and issued her a one month visitor visa.

That would have been the US border officials (if your wife is Canadian and was entering the US) and shouldn't have any bearing on what the Canadian border officials did/said when you tried to enter Canada.

It shouldn't matter if you're gay or not. In my experience it's easiest to give a straight-forward answer to the border officials rather than giving them too much detail - i.e., just tell them you're coming to visit...don't explain your marital status or that you're applying for PR unless they ask about it specifically. If they ask how long you are staying, make sure they know you are aware of the 6 month limit and don't intend to overstay.

I'm not sure what to suggest for you now that they'd ordered you to leave. You could try crossing the border by land and re-entering to see if they'll let you re-enter as a visitor.

 

[AllisonVSC]

I sorry you're having such a hard time. I (also American) had issues crossing the border and was given a very short, though not as short as yours, visitor visa too. I hope someone here can give you some advice about appealing the decision on your extension.

It is unclear from your post whether you mailed the fee in August or not. If you did, have you tried calling to explain the misunderstanding, because your payment would only be a few days short of the mark? It is also unclear from your post, if in the refusal letter they gave you a new leave-by date. If so, I'm guessing that date has already passed and that you are here in Canada without status. Is that correct?

 

[woe]

Yeah, I've had my experience with them and they've never given me trouble, like I said. I don't know why we were red flagged for whatever reason. I definitely didn't mention wanting to start PR or anything, just saying I was coming up to visit my father-in-law who was in the hospital at the time, which was true. And I could try that, but if they refuse me I literally am homeless. Any money we have right now has been saved up for PR. Do you happen to know about the whole 2005 Joe Volpe thing? Should I have an issue sending in my application for PR? I was planning on applying outside because it's quicker but I'll do inside if it matters - like I said, there was a thread where the guy apparently overstayed for 2 years and applied for an extension and was denied as well and it doesn't seem like anyone was against him filing for PR but telling him to do so. I'm completely utterly lost at this point. I don't want to send in the application if it's just going to get rejected because I'm currently out of status.

 

[woe]

Allison:

The fee was mailed I believe in the middle of October. Because we did not plan on having to pay anything other than the initial $75 we didn't really have anything set aside and, like they do when times are tough, things came up. And I was given no leave by date. I believe it says "please leave immediately", but the letter was dated February the 5th and I just received it last night. So I guess I am currently without status. I would love to know how to appeal this and will definitely be posting there.

 

[woe]

So reading up some more on how to appeal this, did I technically get a departure order? ??? I am going crazy. Apparently those have a "leave by" date and a number to contact CSBC. Or do you get that after getting the initial "please leave immediately" that's included in the letter?

 

[woe]

Alright, my wife and I were talking and I think we may have figured something out if appealing isn't an option. I'll return back to my homestate of Florida for a few weeks if I can convince an old friend to let me crash on the couch or something. What I want to know is how do I go about applying for a visitor's visa without being at the border? If I go all the way back to Florida then I'm worried once I come all the way back up, they'll pull something again and only let me stay for a little while. Is there any way I can apply for a visa beforehand instead of having to chance it at the border?

If not, back to the drawing table. If anyone has any experience in appealing this stuff, please feel free to PM me.

 

[woe]

LOL I know I am getting annoying with this but I keep finding more and more things.. I can't post links, but:

If I have overstayed my visa or visitor record or if I have been working or studying without a permit, can I apply for permanent residence under the Spouse or Common-law Partner in Canada Class? If yes, how do I apply?

Yes. You can apply for permanent residence under a public policy that creates exceptions to the Spouse or Common-law Partner in Canada Class, if you are still in Canada.


Does this mean that I just have to do the inland instead of outland application? Is there a guarantee that I get to stay with my wife if I do the inland? I don't want to wait that long but being without her would kill me.

 

[grettta]

Does this mean that I just have to do the inland instead of outland application? Is there a guarantee that I get to stay with my wife if I do the inland? I don't want to wait that long but being without her would kill me.

That would likely be an inland application, but you should call the CIC to find out.

 

[woe]

It's so convoluted. It says that but then it says you're responsible for maintaining your status no matter what. I'll definitely call CIC on Monday.

 

[grettta]

It's so convoluted. It says that but then it says you're responsible for maintaining your status no matter what.

They probably say that because they don't want people to get the idea that it's okay to overstay.

 

[YorkFactory]

I'll definitely call CIC on Monday.

If the call center is in Ontario, it may not be open on Monday, as that's a holiday.

 

[Siouxie]

I think this is what you are looking for...

On February 18, 2005, the Minister announced a new public policy under which legal immigration status is no longer a requirement for spouses and common-law partners of Canadian citizens and permanent residents in Canada who wish to apply permanent resident status provided that they have an eligible sponsor. However, all other eligibility requirements continue to apply.

Although out-of-status spouses and common-law partners may now apply for permanent residence in the Spouse or Common-law Partner Class, persons without legal immigration status in Canada are unable to work or study and may be subject to removal proceedings at any time for failing to have or maintain legal immigration status in Canada.

http://www.cic.gc.ca/english/information/applications/guides/5289E10.asp

You are expected to retain valid visitor status but if you haven't then it is still possible to apply.

Normally I would recommend applying outland as it is much quicker and you can still remain in Canada whilst it is in process but as you have received an overstay notification it may not be a good idea. (Others can advise you better than I)

If you want to remain in Canada and there is a risk of you not being allowed back in from the US then the easiest way is to apply inland and apply for an open work permit at the same time, which will give you valid (implied) status, otherwise wait until Approval In Principal is given (up to 6 months to receive) and you will have the right to apply for a work permit or study permit then.

You theoretically have "implied" status once you have an application for PR in place, however, if you go the Inland route be prepared to remain in Canada until PR is given as you must be resident in Canada to recieve it and there is a chance that you may be refused entry if you leave (wiping out your application automatically).

I was in status when I applied but out of status for 3 years by the time I "landed".

Hope that helps.