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Maintaining legal status as a temporary resident in Canada

18/10/2018

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Every year, hundreds of thousands of foreign nationals are admitted to Canada as “temporary residents”. These may be tourists who are visiting under a visitor visa or an electronic Travel Authorization (eTA) if they are from a visa-exempt country. They may be students or workers in Canada temporarily. While many applicants are most concerned about the eligibility requirements to obtain such temporary visas to enter Canada, it is extremely important for temporary residents to understand the legal nature of their stay in Canada in order to maintain their status and ensure that they do not become inadmissible to Canada by breaching any conditions on their type of visa.

Having legal status means you are authorized to enter and remain in Canada as a temporary or permanent resident under the Immigration and Refugee Protection Act, as a Canadian citizen under the Citizenship Act or as a Registered Indian under the Indian Act. In the case of temporary residents, your status is valid for a specific period of time that is set out in your visa, study or work permit.

Apply for an extension before you lose your status

Each type of temporary visa has a different duration. For example a study permit may be for the duration of your studies in Canada. A work permit may be for the duration of the contract of employment you have with your employer in Canada. In the case of visitors you are generally permitted to stay in Canada for up to 6 months from the date of your entry (unless the officer indicates at the time of your entry that you are permitted to remain in Canada for a shorter period of time).

Irrespective of the type of temporary status you hold, you should be careful of the duration and ensure that you take appropriate steps to extend you status before your status expires. For example, if your studies are taking longer than your original study permit, you can apply to extend your study permit. In the case of visitors, you will need to leave Canada before six months or, if there is a reason why you need to remain in Canada, it is possible to apply for an extension of your status before the six months is up.

What if you miss the deadline to extend you status?
In some situations you may not be able to apply to extend your visa or apply for a new visa in time. Depending on your circumstances this may create serious problems with regards to your ability to extend your study permit or work permit and may even impact your eligibility for future visas. However, if you have missed your deadline to apply for a renewal by only a few days, there is a window of opportunity to be able to apply to restore your status for up to 90 days from the date of expiration of your visa or permit

A restoration application is very important as you must explain the circumstances that prevented you from complying with the conditions of your permit and you must meet all the conditions of your initial visa or permit. Applications are processed on a case-by-case basis and the 90 day deadline is very rigid. If you have missed your deadline you should immediately consult an experienced immigration lawyer to understand your options.

Application To Return to Canada (ARC)
In some cases, where a temporary resident has overstayed his or her authorized period to remain in Canada or did not comply with the conditions of his or her stay, the resident may be issued with a removal order. If you are issued with a removal order (which may be a departure order, deportation order or exclusion order) then you may no longer stay in Canada and it may also result in you becoming inadmissible for re-entry to Canada.

Depending on the reason you receive on the removal order you may be able to appeal the decision. However, once a removal order is final, in most cases you will need a special permission called an Authorization to Return to Canada (“ARC”) before you will be allowed to re-enter Canada.
ARC applications require that you demonstrate that there is a low possibility that you will repeat the behaviour that caused the order to be issued in the first place and your current situation as well as the reason you have for returning to Canada. The officer will also consider the reasons for which the removal order was issued and the amount of time that has passed since the order was issued. There is no guarantee that an ARC will be issued and by having the assistance of an experienced immigration lawyer you will be able to navigate the process and ensure that you submit the best application possible and have the highest chance of success.

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Latest Developments in Canadian Citizenship

22/2/2018

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Last October and November I wrote extensively about the changes that were made to the Citizenship Act by the Liberal government. The most important change came into effect on October 11, 2017 when eligible applicants who had been physically present in Canada to three years could now apply for citizenship. Subsequently Immigration, Refugees and Citizenship Canada received received than 30,000 new applications in the first two weeks after the changes, more than double what they would have received in each month prior to the change.

However, these were not the last changes and some important changes have come into effect in 2018. These changes include:
1- Change in Citizenship Revocation Process

Those who obtain Canadian citizenship by naturalization may have their citizenship revoked in a number of circumstances. These include if they obtained their citizenship by:

a- making false representations in their application

b- committing fraud (either in your application for permanent residence or citizenship)

c- knowingly concealing material circumstances


In addition, Canadian citizenship of those who are either
convicted of terrorism, treason, or spying offences, and those who have served as a member of an armed group may also be revoked.

Prior to January 11, 2018 the decision to revoke a person's citizenship was made by the Minister of Immigration. This was deemed to be unfair by a decision of the Federal Court in May 2017 which struck down the revocation decisions that had been made because they deemed that the process had not been fair. However, as of January 11 the
process for revoking the citizenship of an individual has changed significantly and individuals whose case is subject to possible revocation have the choice to either have their case heard and decided by the Federal Court, or to request that the Minister of Immigration decide the case.

The Federal Court is an independent judicial body that will be able to hear submissions from the individual as well as the government representative before making a final determination on the revocation of citizenship. This is intended to increase the fairness of the process by giving individuals the opportunity to present their case and defend themselves before an independent decision-maker. Even in cases where the individual asks for the Minister to decide the case, they still have the option to seek leave to judicially review the Minister's decision at the Federal Court.


Revocation is an extreme remedy and is usually the final step in the investigation process. Usually investigations are conducted by the RCMP and the CBSA to determine if there is a basis for revocation. If they find that there is evidence to support a revocation proceeding the individual will receive notice that revocation proceedings are being commenced. Revocation of Canadian citizenship is a very serious matter with grave consequences on an individuals' life and future. Depending on the basis for the revocation, the individual may lose his or her citizenship and may also lose his or her permanent residence and face removal from Canada. Even with the added protection of Federal Court proceedings, if a person is facing a revocation of citizenship it is vital to seek legal advice to immediately.


2- Changes to citizenship applications for minors

The changes in the Citizenship Act introduced last year allowed minors (those under the age of 18 years) to apply for a grant of citizenship on their own behalf. This made it easier for minors to apply for citizenship on their own behalf rather than having to rely on a parent or guardian to apply for them.


​The application fee for minors applying with their parents was $100 but if they were applying by themselves it was $530. However, there is good news for the minors applying for themselves: as of February 16, 2018, IRCC has reduced the application fee for minors applying by themselves from $530 to $100 to ensure that there is no difference in the fee paid for a grant of citizenship by minors irrespective of the process that they use. The government has committed to reimbursing the $430 to all applications who applied between June 19, 2017 and February 16, 2018 and will start contacting applicants directly to start the refund process.


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Top 5 Questions from Visitors to Canada

8/2/2018

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I wrote last week about the increase in the number of visitor visas being issued by Canada over the past three years. These include visas for tourists, those coming to visit family members as well as business visitors, all of whom receive with the same “visitor visa”. Being new to the Canadian legal system many visitors have questions about what they can do as visitors in Canada and the limitations on their visas. While each case is unique, below are the top 5 questions I am frequently asked by visitors to Canada.


1- Should I buy travel insurance? YES! One of the key criteria in assessing your visitor visa application is your financial ability (as well as the ability of any person inviting you) to pay any expenses related to your trip. This is because visitors are not permitted to use public services in Canada such as free health care. As a visitor to Canada you will not be covered by the public health insurance system and must either have private health coverage or pay for the medical coverage you receive from a doctor or hospital. You should look into getting emergency travel insurance and speak with an experienced insurance broker in Canada to find the best possible insurance plan before you travel to Canada.


2- How long can I remain in Canada with a visitor visa? Typically when you enter Canada you will be allowed to remain for up to 6 months. In some circumstances, if the officer at the border determines that you should leave Canada before 6 months he or she may determine an earlier departure date. If they require you to leave earlier than 6 months the departure date will be written on the Canada date stamp in your passport.


If you need to remain in Canada beyond 6 months, we may be able to apply to extend your stay. We will need to prove why you need to remain longer and also that you have the financial resources to cover any expenses in the remaining time you will be in Canada. It is very important to carefully keep track of the dates that you travel to Canada and ensure that you depart before the end of your visa. Remaining beyond the validity of your visa may make you inadmissible for future entry or in future applications for visas or permanent residence. In instances where someone has overstayed their visa and lost their legal status they should consult an experienced lawyer immediately to find out how they can restore their status. It will be crucial to act quickly because the window of opportunity to restore your legal status is very limited and once it is gone things will undoubtedly become much more complicated.


I am sometimes asked if it is possible to get around the 6 month deadline by exiting Canada and re-entering Canada a few days or weeks later if you hold a multiple entry visitor visa. While there is nothing in the Immigration laws and regulations that prevents a person from re-entering with a visitor visa you should be mindful that every time you enter Canada your eligibility is checked and reaffirmed by the border officer. You must be able to convince the officer as to the purpose of your trip, your ability to support yourself and that you are a genuine visitor and not someone who is living in Canada with a visitor visa. The border officer can ask to see proof of your ongoing eligibility as a visitor and will likely do so if your pattern of travel gives rise to a suspicion that you are not visiting for a short period but rather intending to effectively live in Canada.


3- Can I study or work while I am in Canada with a visitor visa? NO! When you receive a visitor visa you are only allowed to visit and cannot study or work in Canada. Visitor visas are intended for those who are traveling to Canada for a short period of time and are not intended for someone who wants to remain in Canada for long periods of time. As such you are not permitted to study or work with a visitor visa. The only exemption to this rule is if you want to participate in a short-term course of study that is less than 6 months in duration. In such a case you do not require a study permit and can participate in the course with your visitor visa.


A continuation of this question is: can I turn my visitor visa to a study visa or work visa? There is no automatic mechanism to convert a visitor visa to a study or work visa. In order to obtain either a study or work visa you will need to meet all the requirements for those visas (e.g. have an acceptance from a college or university or have a valid job offer from a Canadian employer) and generally need to apply for the visa from outside of Canada. If you are from a country that requires fingerprints, you will need to travel outside of Canada to provide your fingerprints (even if you previously provided fingerprints as part of your visitor visa application).


4- Can my visitor visa become a permanent residence status if I buy a house, have a child born in Canada or live here for a period of time? NO! In order to become a permanent resident you have to meet the criteria for one of the immigration programs in Canada. There are no limitations on who can buy property in Canada, although some areas such as Ontario and British Columbia now have additional taxes for non-residents due to the perceived effect of foreign buyers on rising home prices. However, Canada does not grant permanent residence to anyone who chooses to buy property in Canada. It is also true that Canada generally grants citizenship to children born in Canada, irrespective of their parents' visa status. However, the grant of citizenship to a child does not bring any additional rights for other family members to remain in Canada or qualify for permanent residence.


A modified version of this question is: Can my visitor visa status become a work permit if I set up or purchase a business in Canada? In some cases, the answer may be yes depending on your circumstances, your prior experience that would be of benefit in developing the business in Canada and how that business can benefit Canada. It is important to note that if you are able to do this you will obtain a work permit and if you wish to remain in Canada permanently you will still need to qualify under one of Canada's immigration programs.


5- What are your options for becoming a permanent residence? The answer depends on your unique circumstances and whether you are able to meet the requirements of one of Canada's current immigration programs. These programs include, but are not limited to: the Federal Skilled Worker Program, Federal Skilled Trades Program, Canadian Experience Class, Start-up Visa Program, Self-employed Program, Caregiver Classes, Provincial Nominee Programs or Quebec Selected Immigrant. Each of these programs has different requirements in terms of education, experience, language ability and so on that you must meet in order to qualify.


And remember while a permanent residence application is separate from your visitor application, the information you provided in your visitor visa application is part of your immigration record. If you “simplified” information or chose not to provide certain information as part of your visitor visa application, such as not declaring your education, work history or family members, then you may be at risk of a finding of misrepresentation. A finding of misrepresentation can lead to the canceling of your visitor visa, removal from Canada and a ban on you being able to submit an application for visa or permanent residence for a number of years. You should consult with an experienced immigration lawyer to assess your situation and determine the steps you need to take to rectify any mistakes that may have been previously made. 
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How to Choose An Immigration Representative

18/1/2018

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The Canadian immigration and citizenship system is complicated and constantly changing. Each case is unique and the way in which laws and regulations apply to your case may be different than the case of other family members or friends. The difficulties in immigration applications is compounded by the fact that most applicants are not native English speakers. Unfortunately, there are many instances of fraud and scams that are perpetuated against those interested in coming to Canada either on a temporary basis as visitors, students or workers, or those interested in becoming immigrants.

Therefore, choosing a representative that can advise you and represent you competently is one of the most important decisions you can make in helping you navigate the immigration system and preventing mistakes that can lead to delays or the refusal of your application. Having a professional that is legally permitted to represent will mean that the representative has to meet regulatory requirements with regards to competence and ethics and if there are any problems you may have recourse to follow up your case.


Who Can Legally Represent

Any person that receives compensation from you in exchange for providing you with immigration advice or assisting you with your application must be declared in your immigration application as a “Paid Representative”. There are a limited group of professionals that are legally permitted to advise you in immigration matters and to prepare and submit applications on your behalf to Immigration, Refugees and Citizenship Canada (IRCC). These professionals are:

  1. Lawyers who are members of the law societies in the provinces of Canada (and licenced notaries in the province of Quebec)
  2. Immigration consultants that are members of the Immigration Consultants of Canada Regulatory Council (IRCC)
  3. In some very limited instances, licenced Paralegals that are members of the Ontario law society
Canadian lawyers are permitted to represent you in all immigration matters including all levels of court and all types of immigration and citizenship applications. Immigration Consultants may also represent you in most immigration matters excluding appeals before the federal court of Canada. And finally paralegals in Ontario have a limited ability to assist applicants in hearing before the Immigration Refugee Board. You can check whether a professional is licenced and is permitted to practice in one of these categories by checking the relevant website (in Ontario: www.lsuc.on.ca/find-a-lawyer-or-paralegal or www.iccrc-crcic.ca).

No other person or entity is permitted to represent immigrants or provide immigration related advice. There are unfortunately individuals and businesses that claim to provide immigration services without any of the safeguards that are in place for lawyers and immigration consultants. For example, unauthorized representatives (also referred to as “ghost consultants”) submit applications with your own name and contact information, without any mention of their role in preparing your application. I have seen countless cases where ghost representatives have provided false information and even fraudulent documents resulting in refusals and findings of misrepresentation for their innocent clients. You should be aware that you are always responsible for all information and documents submitted to IRCC on your behalf and choosing a representative that is competent and ethical can make all the difference.


5 Tips In Choosing Your Immigration Representative

  1. Ask for recommendations – before choosing a representative try to get recommendations from people that you trust. You can also try to search the name of the potential representatives online to see if there are any online reviews or information from past clients.
  2. Ask about the representatives credentials and experience – when meeting with potential representatives make sure to ask about their credentials and specific experience in dealing with similar cases.
  3. Discuss the services they will provide and negotiate the legal fee – make sure to understand what the process will include and the services that will be provided (as well as those that are excluded). You should also discuss the legal and government fees involved in your application up front to avoid misunderstandings during the process.
  4. Have a written contract with your representative – make sure to get the details of the services and fees in a written contract from your representative. Keep the signed contract in a safe place and if it includes milestones for the services to be provided make sure that you refer to it regularly to ensure that your application is proceeding as scheduled.
  5. Protect yourself from fraud by choosing a representative that will represent you ethically – be weary if a representative invites you to take shortcuts as promises that sound too good too be true often are impossible to fulfil. Further you should never agree to provide false documents or information to IRCC as it is against the law and can result in you being denied entry to Canada.
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    Authors: 
    Zeynab Ziaie 
    Zahra Ziaie 

    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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