Ziaie Law: News

Special Sponsorship Cases – When Can You Sponsor Other Family Members

9/10/2017

Over the last few weeks I have written about family reunification in Canada's immigration system. The focus has been on sponsorship of spouses, partners, dependent children and in some cases parents or grandparents. This week I will be writing about the special circumstances in which you may be able to sponsor another family member such as a brother or sister, niece or nephew, aunt or uncle or even grandchild.

Can You Sponsor?
In order to be eligible to sponsor certain relatives you have to be:

at least 18 years old,
a Canadian citizen, permanent resident or registered under the Canadian Indian Act, and
must be able to support the family member you are sponsoring financially.

The financial support requirement is intended to ensure you and the family member you sponsor can meet basic needs for food, accommodation and living expenses and that your relative will not turn to social assistance. Therefore you must be able to demonstrate your income level meets the necessary Low Income Cut Off (LICO) and you must provide an undertaking that your relative will not use social assistance for up to 20 years from the time he or she becomes a permanent resident of Canada.

Who Can You Sponsor?
There are two groups of family members that you may be able to sponsor:
1. An orphaned close relative: If you have a brother/sister, nephew/niece or grandchild who is orphaned, is under 18 years of age and is single, you can apply to sponsor this family member.
2. Other relative You may be able to sponsor one relative who is related to you by blood or adoption, irrespective of their age, if you can meet all conditions, including:
a) you can demonstrate that you do not have a relative that you could sponsor instead such as a spouse, child, parent or grandparent, brother or sister, uncle or aunt, niece or nephew
b) you do not have any of these enumerated relatives who are already Canadian citizens or permanent residents.

For example, if you are a Canadian citizen and do not have any relatives in Canada and are single and without a child, you may be able to sponsor a cousin that is related to you by blood. However, if you are married or have a sibling or other close relative who is a permanent resident or citizen of Canada, you would not be able to sponsor such a family member from abroad. Nevertheless, if you have family members in Canada you may still be able to sponsor an orphaned family member if you meet both the remaining conditions.

Irrespective of whether they are orphaned or another relative, the person you are trying to sponsor must meet the requirements for immigration to Canada. The person will need to undergo medical exams, criminal checks and background checks.

What are your Responsibilities Towards your Sponsored Family Member?
Sponsorship applications for family members described in this article currently take on average 33 months to complete. So, what are your responsibilities when your family member finally receives his or her permanent residence and joint you in Canada?

As explained above, you are required to provide a financial undertaking of up to 20 years for the person that you sponsor. Once your family member lands in Canada as a permanent resident there is no way in which you can withdraw your undertaking.

The exact length of the undertaking is determined by the age of person you sponsor and their relationship to you. However, what is clear is that you are financially responsible for meeting the basic needs for your relative for that time. If the relative that you sponsor uses social assistance during the undertaking period you will be required to pay back the amount to the government. If you owe an outstanding debt for the social assistance used by your relative during the undertaking period, you cannot sponsor any other family member until you have paid off your debt.

If you live in the province of Quebec and wish to sponsor a family member, you must also meet the conditions of the province for you to be approved as a sponsor. In addition to signing an undertaking with the province of Quebec, in some cases you will need to undergo additional steps such as a psychological examination if you are sponsoring a child. The requirements of the province of Quebec are in addition to the federal requirements set out above.

And if your family members are not eligible to be sponsored, they may still qualify under another immigration program, such as the skilled worker program, and may still be able to join you in Canada if they submit a successful immigration application.

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Love Without Borders: Spousal Sponsorship Applications – Part 2

24/9/2017

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Last week I explained who can sponsor their spouse, partner or dependent child and defined who qualifies a to be sponsored. But how does the process work? Where must an application be submitted?

In-land vs Out of Canada Sponsorship Application?
Out of Canada Sponsorship Application: you can generally apply to sponsor your spouse or partner who is living outside of Canada with a sponsorship application that is processed outside of Canada at the visa office that serves your spouse’s country of original or legal residence. This is referred to as an out of Canada or outland application. In these cases, once the application is submitted and passes the first level of processing we can apply for a visitor visa for the spouse to join you in Canada until the processing of your application is complete.

In-land Sponsorship Application: when you and the spouse you want to sponsor are both in Canada you will be able to submit an in-land sponsorship application. Your spouse or partner must be in Canada legally with you as a worker, student or visitor, it is possible to apply to sponsor him or her with an in-land application.

Often times the main difference between these two types of application was the processing time. In-land applications typically took longer to process. Because of this if your spouse is a student or visitor in Canada and you have submitted an in-land sponsorship application, you can apply for an open-work permit for your spouse to allow him or her to work while the sponsorship application is under process. The processing times of applications outside of Canada are determined by the visa office where they are processed. There are great discrepancies between processing times at different visa offices. In December 2016 the Liberal government made an announcement promising to reduce processing times in these types of application and to process in-land and out of Canada applications in a similar time frame.

The visa post that will process your spouse’s application outside of Canada is determined by your spouse’s country of origin or country of legal residence. For example, an Iranian citizen living in the Iran will be processed by Ankara visa office. However, an Iranian citizen studying in the UK with a valid visa can elect to have his or her application processed by the London visa office.

In all applications, after general eligibility is established, officers try to determine whether the relationship is genuine. The forms and required documents for proving your relationship have been updated (and continue to change on a regular basis). To have a successful application you must provide complete information and copious documents to demonstrate that your relationship is genuine. Officers are trained and have experience to recognize and understand national, local and religious customs and traditions. That is not to say that cases that do not follow cultural norms are not accepted, but they must be very well documented and presented in order to convince the officer that the relationship is genuine.

Complicated Cases
While many spousal sponsorship cases may be straightforward, things can be come complicated very quickly. Here are some examples of such cases where the advice of a knowledgeable lawyer can make a great difference to the outcome of your application:

Canada does not have a “fiancé visa” and if you are intended, engaged or betrothed to someone you will not be able to sponsor them until you are in a relationship defined in immigration law. However, your relationship does not have to be a marriage for you to qualify to sponsor if we can prove that your relationship falls under the definition of “common-law partnership” or “conjugal partner” (as explained in my article last week).
There are also some relationships that are recognized as legal in other countries but are not legal in Canada and are unacceptable for Canadian immigration purposes. For example, the age of marriage and the number of married partners. Specifically, polygamy is not recognized under Canadian law and as such a person cannot sponsor a second spouse while they are already married. Often times people may not even be aware of the problem until their application encounters problems. I have seen numerous tricky cases in this area where the laws of other countries allow a person to be remarried before his divorce to his first spouse is finalized. If such a person applies to sponsor his new wife, she will not qualify because he was not eligible to marry someone at the time that he married her.
As I previously explained, if you are a permanent resident and not yet a Citizen, you must be present in Canada when you apply to sponsor your spouse and dependent child(ren). Things can be complicated if you are a permanent resident and cannot leave your child abroad while you remain in Canada to submit a sponsorship application for your child. In these cases we work closely with the parents to find a solution which is based on the specific circumstances of the family.

Overall, as officers are highly alert to the possibility of fraud, submitting a complete application is critical to ensure success and to avoid unnecessary delays. Small errors in the application forms or translation of documents can cause delays and lack of evidence regarding to the genuineness of the relationship can lead to your application being refused. Seeking out an experienced lawyer to review your circumstances and advise you with regards to the laws and regulations can help overcome the obstacles in your way and assist you in becoming reunited with your loved ones sooner.

Excluded Family Members
In order for you to be able to apply for permanent residence for the person (or people) you are trying to sponsor, the principal applicant and any dependents must be assessed and must not be inadmissible to Canada. For example, if you are applying to sponsor your wife and dependent child, you must have previously declared them both in your own application for immigration and they must be both assessed in the new application. Next week I will be writing about the potential risk of having an inadmissible family member if full disclosure was not made in your previous application and the plight of excluded family members.

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Love Without Borders: Spousal Sponsorship Applications – Part 1

17/9/2017

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Love knows no boundaries and thankfully the Canadian immigration system allows eligible Canadian citizens and permanent residents to apply to be reunited with their eligible non-Canadian spouses and dependent children.

If you find yourself in this situation, you need to determine if you are “eligible” to sponsor and if the person you are trying to sponsor falls within the definition of “spouse” or “dependent child”.

Are you eligible to sponsor?
In order to be able to sponsor, you must be:

at least 18 years old
be a Canadian citizen, permanent resident or registered under the Canadian Indian Act
prove that you are not receiving social assistance (other than for reason of a disability)
and in the case one of the persons you are sponsoring is a grandchild of the principal applicant (dependent child of a dependent child), you must show that you have enough income to support that child

While both Canadian citizens and permanent residents are eligible to sponsor, the requirements are slightly different for the application based on the sponsor's legal status in Canada. If you are a permanent resident, you cannot sponsor someone while you are living outside Canada. You will need to return to Canada and live here and then submit an application to sponsor your spouse, partner or dependent child. This can be a little tricky in the case of small children that have to be sponsored by their mother and it is best to consult with a lawyer in this regard. If you are a Canadian citizen, you may begin your sponsorship application from outside of Canada but you will need to prove to the officer that you intend to return to Canada to live permanently once the application has been completed.

There are also important circumstances under which you cannot sponsor. For example you will not be eligible to sponsor if: you have failed to pay for an immigration loan or family support payments, you have failed to provide for basic needs of relatives you previously sponsored and who have received social assistance, you receive social assistance for a reason other than a disability, or you are under a removal order from Canada.

These rules and regulations are a reflection of the social values of Canada. For example in the interest of maintaining the integrity of the immigration system, there is a limitation that prevents applicants trying to use “marriage” and “relationships” as a means to obtain permanent residence in Canada. This means if you received permanent residence by being sponsored as a spouse or partner, you cannot sponsor a new spouse until 5 years has passed since your obtained permanent residence. Another policy concern is the safeguarding of vulnerable persons. Therefore, if a person is convicted of a violent or sexual offence, on an offence causing bodily harm to a relative, he or she may be prevented from sponsoring a spouse or partner.

Who can you sponsor?
You can sponsor a: Spouse, common-law partner, conjugal partner or dependent child.
Spouses: A spouse is someone that you are legally married to. A common-law partner is a person you have been living with in a conjugal relationship for at least one year. A conjugal partner is a person outside of Canada who has a binding relationship with the sponsor for at least one year but cannot live with the sponsor. In order to be eligible to be sponsored, your spouse or partner must be at least 18 years old and you must be able to prove that you have a genuine relationship.
Immigration officers will look carefully at the evidence of your relationship and they are trained to know the customs relevant to various cultural, national or religious practices in order to assess the genuineness of a relationship. In most instances where the relationship is genuine, officers can make a positive determination. However, instances that are unique and out of the ordinary, for example where the marriage is not the first marriage of either partner, or the couple have not met each other's family members or there is a significant age gap between the couple, the immigration officers will require more evidence to be convinced of the genuineness of the relationship.
The current checklist for these sponsorship applications is very detailed and a high percentage of applications are returned if there is even one missing form or signature. Therefore, it is important for you to compile a complete application or to find appropriate legal representation to assist you in this matter to reduce the probability of mistakes and help avoid any potential delays in your application.

Dependent Children: a child is deemed a “dependent” of his or her parent if he is either under 19 years of age and is not married, or over 19 years and is dependent on his or her parents due to a physical or mental condition. This definition of dependent is set to change in October and will include children up to 22 years old.

Your Financial Undertaking and Conditional Permanent Residence
When you sponsor your spouse, partner or dependent child you are required to provide an undertaking that you will support them financially and they will not use social assistance. For spouses and dependent children over 19 years, this undertaking is 3 years. For dependent children under 19, the undertaking is 10 years or until they turn 22 years old. If they use social assistance during this time period, you are liable to pay back these amounts to the government and you will be prevented from making any future sponsorship applications until any such debt is settled.

Finally, you should be aware that the permanent residence that your spouse or partner receives will no longer be conditional. Based on changes introduced by the Liberal government in April 2017, there is no longer a condition that the couple have to live together or have children together in order to obtain and maintain their permanent residence. Any applicants that landed in Canada with this condition should note that the condition no longer applies.

Changes in Eligibility, Definitions and Program Requirements
As the requirements and definitions related to these sponsorship applications is changing, you will benefit from analyzing your case carefully with a lawyer to ensure that you are qualified to sponsor and that your relative is eligible to be sponsored. Next week I will be writing about the differences between applying for sponsorship from inside or outside Canada and what are some of the interim options that you have while your sponsorship application is in process.

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Families First: The Goal of Family Reunification in Canada’s Immigration System

8/9/2017

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What is family reunification?
One of the important pillars of Canada’s immigration policy is the goal of “family reunification”, the attempt to keep families together and to reunite families who may be separated before and after immigration. Unfortunately, immigration often leads to the separation of family members and I am certain that every reader will know of at least one family that has been separated and faced the devastating negative impact of the separation on their health and ability to integrate into Canada. The goal of family reunification recognizes this challenge and is an attempt to reduce the negative impact by helping new immigrants, as well as long-established citizens, to be reunited with certain members of their family.

Family Class Immigration
The federal Family Class immigration program receives thousands of applications each year and consists of the following categories:

Sponsorship of spouses, partners or dependent children
Sponsorship of parents and grandparents
Sponsorship of adopted children
In exceptional circumstances, sponsorship of other relatives

There are also certain provincial programs that may allow someone living in that province to be able to support an application of a close relative to be able to come to Canada.

The definition of what counts as “family” in Canada’s family reunification program has become more restricted over the years. Missing from these categories is an opportunity to easily sponsor extended family members such as brothers, sisters, nieces, nephews, aunts and uncles. Nevertheless, these categories are still fairly generous and are processed relatively fast compared to family programs in other countries.

It is important to note that the goal of family reunification is balanced against other important policy interests such as preventing fraud and ensuring that the overall economic impact of family class immigration is positive. In the interest of preventing fraud, Canada has taken and continues to take steps to verify information and documents to prove genuineness of relationship and prevent misuse of the program. One such measure introduced by the previous Conservative government was to only grant conditional permanent residence for two years to sponsored spouses. This was intended to deter those who only wanted to marry a Canadian permanent resident or citizen to come to Canada and intended to leave their Canadian partner within a short time of receiving their permanent residence. The current Liberal government has eliminated this conditional residence but they have introduced more rigorous requirements for documentation to prove that a relationship is real before a permanent residence visa is issued.

Eligibility to Sponsor
If your relative qualifies under one of the four categories listed above, you may be able to sponsor them if you can show at a minimum that:

You are a Canadian citizen or permanent residence and are at least 18 years old
You are able to support your relative(s) financially when they arrive
You undertake that your relative(s) will not use social assistance from the government for 3 to 20 years (depending on the category)
And in some cases, you can show that your income is sufficient to support your immediate family as well as the person(s) you are sponsoring

There are additional requirements for each category as well. For example, to sponsor your husband or wife, you will need to show that you have not used social assistance and that your relationship is genuine. In the case of parents or grandparent sponsorship, you must demonstrate that you have sufficient income declared in your tax returns for the past three years to support yourself, your own family as well as your parent or parents that you are sponsoring. If you are sponsoring a dependent child, he or she must have been previously declared and examined when you immigrated to Canada in order to him or her to qualify as a family member that you can sponsor.

In each case you will benefit from analyzing your case carefully with a lawyer to ensure that you are qualified to sponsor and that your relative is eligible to be sponsored. In the coming weeks, I will be writing about these different categories and some of the important issues that you should be aware of when applying to sponsor relatives under each category.

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Deadline to Submit Parent and Grandparent Sponsorship Applications

30/6/2017

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One of the important objectives of Canadian immigration policy is family reunification. There are opportunities, albeit limited, for citizens and permanent residents to be reunited with their closest family members. Canadian citizens and permanent residents can sponsor spouses, dependent children and in some cases their parents or grandparents if they meet the criteria set out by the Immigration and Refugee Protection Act.

Canada's programs have become more restrictive over the past two decades. Specifically the parents and grandparent sponsorship program (PGSP) was closed for three years and reopened in 2014 with a quota of just 5,000 applications. The program operated on a first-come, first-served basis and in each year the annual quota was filled in a matter of days. This year, IRCC announced that it would increase the quota to 10,000 applications and introduced a new lottery system for selecting those who can apply to sponsor.

Interested applicants were given the opportunity to register their interest to apply for the PGSP online. It is estimated that more than 95,000 people registered their interest to participate in the program between January 3 to February 2, 2017. On 24 April 2017 IRCC began sending responses to the thousands of successful and unsuccessful registrants. The responses were only sent by email and applicants have been provided with a limited time to apply. The deadline for submitting complete applications is 90 days from the date the notices were sent (around 24 July) and is fast approaching.

There is an important catch: even those who have been lucky enough to be selected in this year's lottery should carefully assess if they are eligible to apply and meet all the requirements of the program. There was no assessment of whether the 95,000 registrants met the minimum requirements, which means that there are going to be registrants who received good news emails but cannot submit a successful application to sponsor. All registrants who receive positive emails from IRCC should ensure that they meet all the legal requirements (such as having the necessary minimum income for the three years preceding the date of application: see summary below) and that they submit a complete application. Incomplete and ineligible applications will be returned by IRCC.

IRCC's latest efforts are an attempt to make the system more fair and further reduce the backlog of sponsorship cases, which at their peak reached upwards of 100,000 applications in 2011. Up to now IRCC has received less than 1,000 applications from the 10,000 invitations they sent out in April. While more applications are anticipated to reach IRCC as we get closer to the deadline there may not be enough applications to fill this year's quota. It is not yet clear what IRCC will do but there is a chance that they may run another lottery for qualified applicants later in the year.

If you are not one of the lucky qualified applicants invited to apply this year, do not worry. There are still other options for inviting your parents or grandparents to join you in Canada, albeit on a temporary basis such as the supervisa or a multiple entry visitor visa. And, of course, there is always next year or the next round of the lottery.

Eligibility Requirement for Parent & Grandparent Sponsorship
In order to sponsor, you must:

be 18 years of age or older;
be a Canadian citizen, Registered Indian or permanent resident;
be sponsoring your parent or grandparent;
live in Canada;
sign an undertaking promising to provide for the basic requirements of the person being sponsored for a period of 20 years;
sign an agreement with the person you are sponsoring that confirms that each of you understands your mutual obligations and responsibilities;
prove that you have sufficient income to provide the basic requirements for your family members in Canada as well as the persons included in your sponsorship undertaking. You may also have a co-signer

The minimum necessary income requirement is based on the size of your family and the number of people you are sponsoring and is assessed based on your income from the three years preceding your application. For example for a family of three sponsoring both their mother and father, the applicant (along with a potential co-signer) would need to show income of at least $64,791 in 2014, $65,377 in 2015 and $66,654. This amount varies based on the number of people in the family and those being sponsored. The income is verified based on proof of income from the Canada Revenue Agency (CRA).

Note: This information is not intended as legal advice or opinion. You should always seek specialized legal advice with regards to your situation as the facts of each case are unique and the application of law varies in every case.

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NEWS

Special Sponsorship Cases – When Can You Sponsor Other Family Members

Love Without Borders: Spousal Sponsorship Applications – Part 2

Love Without Borders: Spousal Sponsorship Applications – Part 1

Families First: The Goal of Family Reunification in Canada’s Immigration System

Deadline to Submit Parent and Grandparent Sponsorship Applications

Authors:
Zeynab Ziaie
Zahra Ziaie

Archives

Categories

NEWS

Special Sponsorship Cases – When Can You Sponsor Other Family Members

Love Without Borders: Spousal Sponsorship Applications – Part 2

Love Without Borders: Spousal Sponsorship Applications – Part 1

Families First: The Goal of Family Reunification in Canada’s Immigration System

Deadline to Submit Parent and Grandparent Sponsorship Applications

Authors: Zeynab Ziaie Zahra Ziaie

Archives

Categories

Authors:
Zeynab Ziaie
Zahra Ziaie