Arsh Samra Law | Criminal & Family Law Lawyer | Vancouver BC
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Surrey Lawyer - Immigrating To Canada

Immigration Services in Surrey

 

Who is a foreign national?

A foreign national is an individual who is neither a Canadian citizen nor a permanent resident of Canada.

What Immigration Options Do I Have as a Foreign National Trying to Seek Entry into Canada?

A foreign national may seek entry into Canada as a temporary resident or a permanent resident.

SPONSORING A FOREIGN NATIONAL AS A MEMBER OF THE FAMILY CLASS

Who is a Member of the Family Class?

With respect to a sponsor, a foreign national is a member of the family class if the foreign national is:

(a) the sponsor's spouse, common law partner or conjugal partner;

(b) a dependent child of the sponsor (defined as a biological or adopted child who is either under the age of 19, with no spouse or common law partner or, if over 19, is dependent based on the child's physical or mental condition);

(c) the sponsor's mother or father;

(d) the sponsor's grandparents; or

(e) other categories as described in the regulations.

Who is not a Member of the Family Class?

Specifically excluded from the family class are persons described as follows:

(a) the sponsor's spouse, common law partner or conjugal partner, if they are under 16 years of age;

(b) if in the sponsorship of a spouse, common law partner or conjugal partner, the sponsor already has an existing sponsorship of a spouse, common law partner or conjugal partner of which the undertaking period has not ended;

(c) bigamous relationships as defined under the Act; or

(d) the sponsor previously made an application for permanent residence and, at the time of that application, the foreign national was a non-accompanying family member of the sponsor and was not examined.

In addition, a spouse or common law partner or adopted child is not considered to be a member of the family class if the marriage, relationship or adoption, was entered into primarily for an immigration purpose or is not genuine.

What are the Implications of not Being a Member of the Family Class?

If a foreign national is excluded from the family class, then that foreign national cannot apply for permanent residence as a member of the family class.

What Requirements Do I need to Meet as a Sponsor?

In order to sponsor a member of the family class, the sponsor must be a Canadian citizen or permanent resident and must meet other requirements as set forth under the regulations, which include:

a) not being subject to a removal order;

b) not having been convicted of a sexual offence or an offence resulting in bodily harm against prescribed family members;

c) not being an undischarged bankrupt; and

d) not being on social assistance.

In addition, except in certain cases such as in the case of a sponsored spouse, common law partner, conjugal partner or dependent child, the sponsor must also meet the minimum necessary income for sponsorship.

BECOMING A TEMPORARY RESIDENT

How Can I Be Granted Entry as a Temporary Resident?

Temporary residents are granted entry as students, temporary foreign workers, temporary resident permit (TRP) holders,or visitors.

Do I Have to Obtain a Temporary Resident Visa if I Want to Enter and Remain in Canada Temporarily?

It depends. In almost all cases, a foreign national may not enter and seek to remain in Canada on a temporary basis, without first obtaining a temporary resident visa. The exception lies where that individual is exempt from doing so pursuant to the regulations.

Where Do I Begin?

A foreign national must apply for the appropriate authorization prior to entering Canada.

What is "Dual Intent"?

The concept of dual intent recognizes that a foreign national's desire to seek permanent residence in Canada does not necessarily negate that same individual's intent to enter Canada on a temporary basis, only if an officer is satisfied that they will leave Canada at the end of the period authorized for their stay.

Who is Considered a Visitor?

Visitors are a class of foreign nationals who may become temporary residents if allowed to enter Canada as a visitor.

Do I Have to Apply for a Visa Prior to Entering Canada?

It depends. Not all foreign nationals have to obtain a visa prior to entering Canada. Some foreign nationals from visa exempt countries such as USA, may be granted entry into Canada at a port-of entry.

Who are Some of the Foreign Nationals Who are Visa Exempt?

U.S. Citizens and U.S. permanent residents are among those who are visa exempt.

What Happens When a Visa is Granted?

The foreign national is then examined by an officer at a port-of-entry to ensure that

1) the foreign national meets the requirements of the Act (IRPA),

2) that they will leave by the end of the period authorized, and

3) that they will not engage in work or study without authorization.

How Long Can a Foreign National be Granted Entry into Canada?

Unless otherwise specified, entry is granted for a period of six months.

Can the Duration Vary?

It can at the discretion of the visa officer, based on:

a) the amount of time requested;

b) the applicant's means of support in Canada; and

c) the expiration of the applicant's travel document or passport.

Can My Stay Be Extended?

A foreign national's stay may be extended if the foreign national applies to do so prior to the expiration of that period and if they have complied with the conditions previously imposed on their entry into Canada.

What Happens to My Status Up to the Time a Decision is Made?

The foreign national has implied status in Canada until a decision is made as to whether an extension should be granted.

Who is the Student Class?

The student class is a prescribed class of foreign nationals who may become temporary residents.

If I am not a Citizen or PR, can I Attend a University or Take Other Training in Canada?

If you are not a citizen or permanent resident, then you must have a valid study permit in order to attend university, college or take other training in Canada. (NOTE: There are exceptions in the regulations)

When is a Study Permit Not Required?

A study permit is not required for programs of study that are six months or less.

What Requirements are There For Students?

There is a qualitative aspect such that mere attendance not sufficient to determine whether a foreign national is granted a student visa. There must be a bona fide attempt on the part of the dependent child to assimilate the course material. Applications for study permits must be accompanied by a letter from an educational institution accepting the applicant to attend or take a specified course at the institution. In addition, the applicant foreign national must present sufficient documentation to satisfy an immigration officer at the port - of- entry that the applicant has sufficient financial resources available, without engaging in employment in Canada, to pay tuition, transportation costs to and from Canada, and living expenses for the period of study. A study permit will be issued to a foreign national if the visa officer is satisfied that

a) the person has applied in accordance with the Immigration and Refugee Protection Act (IRPA) and regulations,

b) will leave Canada before the end of the period authorized, and

c) is not otherwise inadmissible to Canada.

Where Do I Apply for a Study Permit?

Every person making an application for a study permit must make the application to a visa officer before the person appears at a port-of-entry, except for some exceptions under the regulations. Certain foreign nationals may make an application for a study permit after entry to Canada, including:

a) holders of study permits, work permits, or temporary resident permits (TRP);

b) renewals and extensions of current study permits;

c) individuals subject to unenforceable removal orders; or

d) individuals who are accompanying family members of certain foreign nationals.

Can I Extend My Study Permit?

Possibly. A foreign national who holds a valid study permit may apply within Canada to renew, extend, or change the conditions of that study permit. The key is the application must be filed before the study permit expires and the foreign national must have complied with all the terms and conditions imposed on the previous study permit.

As a Student Permit Holder, Can I Obtain a Work Permit?

Yes, a foreign national who holds a valid study permit may apply for and be granted a work permit, if that foreign national can show that

a) they cannot support themselves without working, and

b) that they have become temporarily destitute through circumstances beyond their control and beyond the control of any person on whom that person is dependent for the financial support to complete their term of study.

Post-secondary (college or university) students can apply for a work permit to work part-time while studying subject to permission from their post-secondary institution. In addition, students who have graduated from post-secondary programs of one year or more in length may apply for an open work permit.

As a Student Permit Holder, Can I Work Without a Work Permit?

Only in some instances. Students can work at the institution which they study at without a work permit.

Who Is a Temporary Foreign Worker?

Is a foreign national who is in a prescribed class of persons who may become temporary residents.

When Do I Apply For a Work Permit?

Except as exempt by the regulations, every person making an application for a work permit must make the application to a visa officer before the person appears at a port-of-entry.

Can Apply For a Work Permit if I am Already in Canada?

Yes under some circumstances. A foreign national may apply for a work permit after entry into Canada if that foreign national

a) already holds a work permit,

b) is legally working in Canada without a work permit,

c) holds a study permit, or

d) holds a temporary resident permit.

Some other individuals who may apply for a work permit after arriving in Canada include:

a) individuals subject to unenforceable removal orders,

b) applicants under the live-in caregiver class,

c) spousal or common law partners class,

d) humanitarian class, and

d) protected persons.

Remember that no foreign national may engage in employment in Canada without a work permit, unless otherwise provided for under the regulations.

Can I Legally Be Employed as a Foreign National Without Obtaining a Work Permit?

Certain foreign nationals may do so. These include:

a) business visitors,

b) foreign representatives and their accompanying family members,

c) military personnel,

d) foreign government officers,

e) students working on campus,

f) performing artists,

g) athletes and coaches,

h) news reporters,

i) public speakers,

j) convention organizers,

k) clergy,

l) judges and referees,

m) examiners and evaluators,

n) expert witnesses or investigators,

o) health-care students,

p) civil aviation inspectors,

q) accident investigators,

r) crew members, and emergency service providers,

s) cross-border maritime law enforcement officers,

t) in-flight security officers aboard commercial passenger airlines,

u) students who hold or did hold a study permit, under certain prescribed circumstances, and

v) live-in caregivers (Special rules apply for their qualifications).

Can I Extend My Work Permit?

Yes. A person in Canada who is already the holder of a work permit may make an application to renew or extend that work permit from within Canada, as long as

a) the application is made before the work permit expires, and

b) the applicant has complied with all conditions imposed at the time of entry into Canada.

Who is a Temporary Resident Permit for?

When a foreign national who is inadmissible to Canada, they may be issued a temporary resident permit (TRP) if the visa officer is satisfied that it is justified in the circumstances. A foreign national to whom a TRP has been issued becomes a temporary resident upon being examined at the port-of-entry.

Can a Temporary Resident Permit Holder Apply for a Work Permit in Canada?

Yes if the holder of a TRP that is valid for at least 6 months, may apply for a work permit in Canada if they cannot support themselves without working.

Can a Temporary Resident Permit Holder Become a Permanent Resident of Canada?

Yes, any holder of a TRP who has continuously resided in Canada for the prescribed period of time may apply to become a permanent resident of Canada.

BECOMING A PERMANENT RESIDENT

Who is a Permanent Resident?

A permanent resident is a person who has acquired permanent resident status and has not subsequently lost that status. It includes a person who has ceased to be a Canadian citizen pursuant to the Citizenship Act. A permanent resident IS NOT a foreign national.

When Can a Person Lose Their Permanent Resident Status?

This can occur in several ways including:

(a) when they a person becomes a Canadian citizen;

(b) on a final determination that they have failed to comply with the residency obligation;

(c) when a removal order made against them comes into force;

(d) upon a final determination that their refugee protection has ceased;

(e) upon a final determination to vacate a decision allowing a refugee claim or protection claim;

(f) on approval by an officer of their application to renounce their permanent resident status;

(g) if the minister seeks and obtains a declaration of the court that the person obtained, retained or resumed his or her citizenship by false representation or fraud; or

(h) if the minister seeks and obtains a declaration of the court that the person engaged in armed conflict with Canada.

Do I Need a Permanent Resident Visa to Stay in Canada on a Permanent Basis?

Yes, unless your case is an exception, a foreign national must apply to an officer for a visa and may not enter Canada to remain on a permanent basis without first obtaining a permanent resident visa.

What if I got an Invitation from the Minister?

A foreign national who seeks to enter or remain in Canada as a member of a class that is referred to in an instruction given by the minister may make an application for permanent residency only if the minister has issued them an invitation to do so, the invitation has not been cancelled and the period for application has not expired.

How are Permanent Residents Selected?

A foreign national may be selected under three general bases:

a) family reunification,

b) economic immigration, or

c) as a refugee.

Family Reunification:

A foreign national may be selected as a member of the family class on the basis of their relationship as the spouse, common law partner, child or other prescribed family member of a Canadian citizen or permanent resident.

Economic Immigration:

A foreign national may be selected as a member of the economic class on the basis of their ability to become economically established in Canada.

Refugee:

A foreign national may be selected as a Convention refugee or a person in similar circumstances, taking into account Canada's humanitarian tradition with respect to the displaced and the persecuted.

What About Provincial Selection?

Permanent Residents can also be selected provincially through agreements with the Federal government. Under the federal-provincial agreements, the province has the sole responsibility for the selection of a foreign national destined to that province. The foreign national selected by a province, unless inadmissible, shall be granted permanent residence.

What if I Don't Fit Into Any of Those Categories or Do Not Meet the Requirements of IRPA?

A foreign national still may be granted permanent resident status under some circumstances. This can happen if the Minister of Citizenship and Immigration is of the opinion that it is justified by humanitarian and compassionate considerations relating to them. These considerations include taking into account the best interests of a child directly affected and other public policy considerations.

What if there is Justification by Humanitarian and Compassionate (H&C) Considerations?

The test if not over merely because there is justification. The foreign national must not be inadmissible on

a) security grounds or the grounds of violating human or international rights, or

b) organized criminality.

How Do I Make an H&C Request?

This request must be made in writing and must be accompanied by an application for a permanent resident visa, if

a) the foreign national is outside Canada, or

b) an application to remain in Canada if the foreign national is in Canada.

What Does the Minister Consider for H&C Considerations?

The minister must consider elemetns relating to hardship that affect the foreign national.

Who is Not Eligible for H&C Considerations?

A designated foreign national is not eligible to make a claim to the minister based on h&c grounds:

a) if they have made a claim for refugee protection but have not made an application for protection, until five years after the date on which the final determination in respect of the claim is made;

b) if they have made an application for protection, until five years after the day on which a final determination in respect of the application is made; or

c) in all other cases, until five years after the day on which they became a designated foreign national.

What Happens if I Submit My Request but Subsequently Become a Designated Foreign National?

The H&C request may be suspended. The minister may refuse to consider the request of a designated foreign national under certain circumstances.

What are the General Requirements for a Permanent Resident Visa?

The following are the general requirements: an application for a permanent resident visa must:

(a) be made in writing using the forms provided by the Department of Citizenship and Immigration;

(b) be signed by the applicant;

(c) include all information and documents required by the regulations and Act;

(d) include evidence of payment of the applicable fee as set out in the regulations; and

(e) clearly identify who is the principal applicant and who is the accompanying spouse, or common law partner, if there is one.

In addition, an application must be made to the immigration office that

(a) the country where the applicant is residing, if the applicant has been lawfully admitted to that country for a period of at least one year; or

(b) the applicant's country of nationality or, if the applicant is stateless, their country of habitual residence other than a country in which they are residing without having been lawfully admitted.

Finally, a foreign national seeking to become a permanent resident must hold either a passport, a travel document or other specified identity documents and a medical examination is required for.

Do I Have to Have a Medical Examination?

Unless, you are applying under the live-in caregiver class, a medical examination is required for foreign nationals applying for a permanent resident visa or applying to remain in Canada as a permanent resident, as well as for their dependant family members, whether accompanying or not.

What Does a Medical Examination Entail?

It may include a:

(a) physical examination;

(b) mental examination;

(c) review of past medical history;

(d) laboratory test;

(e) diagnostic test; and

(f) medical assessment of records respecting the applicant.

What If I am a Refugee?

Refugees can make an permanent resident application within Canada. The requirement to hold a passport, travel document or other specified identity document is not applicable to a protected person within the meaning of the Act when it is not possible for the person to obtain such a document.

Who is in the Federal Skilled Workers

The federal skilled worker class is a class of persons who are skilled workers and who may become permanent residents on the basis of their ability to become economically established in Canada and who intend to reside in a province, other than the province of Quebec. Those persons who intend to establish themselves in the province of Quebec are assessed pursuant to the Quebec skilled worker class.

Who is a Quebec Skilled Worker?

A foreign national is a member of the Quebec skilled worker class if:

(a) they intend to reside in the province of Quebec; and

(b) they are named in a Certificat de sélection du Québec issued to them by the province of Quebec.

How Do I Qualify as Federal Skilled Worker?

A foreign national must meet the following minimum criteria:

(a) within ten years preceding the application for permanent residence, they must have at least one year of continuous full-time employment experience or the equivalent in continuous part-time employment in one or more skilled occupations;

(b) during the period of employment, they must have performed the actions described in the lead statement for the occupation as set out in the occupational description of the National Occupational Classification;

(c) they must have performed a substantial number of the main duties of the occupation as set out in the occupational description of the National Occupational Classification

(d) they must have submitted an evaluation, which is less than two years old, of their proficiency in either English or French; and

(e) they must have submitted either their Canadian educational credential or their foreign diploma, certificate or credential and the equivalency assessment, which assessment must be less than five years old on the date of the application.

In addition, federal skilled workers must be assessed on the basis of the following criteria to determine whether they qualify as a skilled worker:

(a) education;

(b) proficiency in French and English;

(c) employment experience;

(d) age;

(e) arranged employment; and

(f) adaptability.

What If I Don't Meet the Minimum Criteria?

A failure to meet those minimum criteria will result in a refusal of the application for permanent residence. The federal skilled worker must be awarded not less than the minimum number of points as fixed by the minister and made available to the public.

Who is a Provincial Nominee?

The provincial nominee class is a class of persons who may become permanent residents on the basis of their ability to become economically established in Canada.

What are the Requirements?

A foreign national is a member of the provincial nominee class if:

(a) Nomination Certificate: subject to certain exclusions, they are named in a nomination certificate issued by the government of a province under a provincial nomination agreement between that province and the minister; and

(b) Residency: they intend to reside in the province that has nominated them.

Who is Excluded as a Provincial Nominee?

Subject to certain exceptions, a foreign national shall not be considered a member of the provincial nominee class if:

(a) the nomination was based on the provision of capital by the foreign national; or (

b) the foreign national intends to participate in, or has participated in, an immigration-linked investment scheme.

This exclusion does not apply, however, if:

(a) the capital is provided by the foreign national to a business in the province that nominated them, other than a business operated primarily for the purpose of deriving investment income;

(b) the foreign national controls or will control a percentage of equity in the business equal to or greater than 33 1/3 per cent, or an equity investment in the business of at least $1,000,000;

(c) the foreign national provides or will provide active and ongoing management of the business from within the province that nominated them; and

(d) the terms of the investment in the business do not include a redemption option

Who is Part of the Canadian Experience Class?

Members of this class are persons who may become permanent residents on the basis of their experience in Canada and their intent to reside in a province other than Quebec. A foreign national is a member of the Canadian experience class if:

(a) they have acquired in Canada, within the last three years before the application is made, at least 12 months of full-time work experience (or equivalent in part-time work experience), in one or more occupations that are listed as Skill Type O Management Occupations or Skill Level A or B of the National Occupational Classification Matrix, and have acquired that work experience after having obtained a diploma, degree or trade or apprenticeship credential of at least two years in length; and

(b) they have English or French language proficiency assessed by a designated organization or institution and have met the applicable threshold fixed by the minister for each of the four language skill areas.

Who is Part of the Federal Skilled Trade Workers Class?

This a class of persons who are skilled trades workers and who may become permanent residents on the basis of their ability to become economically established in Canada in a skilled trade occupation and their intention to reside in a province other than the Province of Quebec.

A foreign national is a member of the federal skilled trades class if:

(a) Language: they meet the threshold for proficiency in either English or French;

(b) Work Experience: they have, in the five years prior to making their application, acquired at least two years of full-time work experience, or the equivalent in part-time work, in the skilled trade occupation specified in the application after becoming qualified to independently practice the occupation, and during that period of employment has performed the actions described in the lead statement for the occupation as set out in the National Occupational Classification, and a substantial number of the main duties listed in the description of the occupation set out in the National Occupational Classification, including all of the essential duties;

(c) Employment Requirements: they have met the relevant employment requirements of the skilled trade occupation specified in the application as set out in the National Occupational Classification, except for the requirement to obtain a certificate of qualification issued by a competent provincial authority; and

(d) they meet at least one of the following requirements:

(i) they hold a certificate of qualification issued by a competent provincial authority,

(ii) they are in Canada and hold a valid work permit, which work permit meets certain requirements set out in the regulations,

(iii) they are not authorized to work in Canada but have up to two offers of full-time employment in the skilled trade occupation specified in the application and said offer of employment has been approved by an officer;

(iv) they hold a valid work permit and have up to two offers of full-time employment in the skilled trade occupation specified in the application and said offer of employment has been approved by an officer.

Who is Part of the Business Class?

This class is subdivided into three categories:

1) investors; are foreign nationals who have business experience, have legally obtained a net worth of at least $1,600,000, and indicates in writing that they intend to make a qualified investment,

2) entrepreneurs; are foreign nationals who have business experience, a legally obtained minimum net worth and indicates in writing that they intend to and will be able to meet the entrepreneurial conditions, and

3) self-employed persons; are foreign nationals who have relevant experience and have the intention and ability to be self-employed in Canada and to make a significant contribution to specified economic activities in Canada.

Who is Part of the Live-in Caregiver Class?

The live-in caregiver class is prescribed as a class of persons who may become permanent residents on the basis of their experience in Canada as a live-in caregiver.