Permanent Residence Application Process (18:V)

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LSLAP Manual
LSLAP Manual
This page is from the
Law Students' Legal
Advice Program Manual.
See the full contents.
LSLAP Manual
Introduction
Chapters
18. Immigration Law
 · I. Introduction

 · II. Governing Legislation and Resources
 · III. Players
 · IV. Categories of Persons
 · V. PR Application
 · VI. Identifications
 · VII. IRB
 · VIII. Loss of PR
 · IX. Temporary Residence Matters
 · X. Removal Orders
 · XI. Appeals
 · XII. Offences
 · XIII. Issues at Sentencing

 · XIV. Contacts
v • d • e



Immigrant applicants can be broken down into three general categories (these categories are extremely broad): (i.) Economic Class applicants, (ii.) Family Class applicants, and (iii.) humanitarian or refugee applicants. There are several subclasses or subcategories within each of these general headings. All applicants and their dependent family members are subject to medical, criminal, and security checks. These are referred to as “statutory requirements” in the legislation.

Amendments to the Act that came into force June 18th, 2008 give the Minister authority to establish an order of priority for incoming applications (s 87.3), and relieve CIC from the obligation to process all applications to a full decision (s 11). For example, priority processing amongst Family Class applications is given to spouses and dependent children; these are commenced immediately upon receipt. See the Operational Manuals for details.

A. Economic Class Applicants

NOTE:

  • As of January 1, 2015, CIC implemented an online screening and selection process for persons who wish to be considered for permanent resident status in Canada under the Economic Classes of Federal Skilled Worker, Canadian Experience Class, and Federal Skilled Trades Class. This process is called Express Entry (“EE”).
  • EE is a system whereby applicants create an online profile (there is no paper process for creating an EE profile) that assigns points according to “Human Capital Factors” and “Skill Transferability Factors” under a “Comprehensive Ranking System”. An applicant can obtain a maximum score of 600 points based on these factors in combination, and an extra 600 points by obtaining a special EE-related Provincial Nomination (see Provincial Nominee Programs) or an LMIA (see Workers). These factors and selection criteria were established through Ministerial Instructions, and can be reviewed in detail on the [CIC website.
  • Once the person has created an active EE profile, they may be selected for an Invitation to Apply (“ITA”) for permanent resident status under one of the three aforementioned Classes of permanent residence. They will be issued an ITA if their profile score equals or exceeds the score chosen by CIC at a particular selection pass. Consequently, potential immigrants do not know if they are able to apply for permanent resident status until they receive an ITA.
  • Upon receiving an ITA, the applicant has 60 days to submit the application for permanent resident status. The application is made entirely online, without written forms, and requires scans of all relevant documents. The applicant will not know exactly what documents are required until they actually receive the ITA, and the documents required may change according to other evidence provided as part of the application. The online submission is often referred to as the “e-APR”.
  • Once the e-APR is submitted, they will be contacted by CIC with instructions on where to send original documents that may be required (such as original police clearances).

Foreign nationals who apply under one of the economic classes must prove that they will become financially established in Canada. This general requirement is reflected through a series of criteria. There are three general sub-classes within the economic class: the skilled worker class, investor class and the self-employed class. Please note that there are Provincial Nominee Programs in operation throughout Canada, including British Columbia. Under these programs, the province nominates an immigrant for Federal screening (see s 87 of the IRP Regulations). Nomination by a province provides strong evidence of an applicant’s ability to become economically established in Canada as required by IRPA s 12(2). A detailed discussion of these programs is beyond the scope of this Manual.

1. Federal Skilled Worker Class (Express Entry Required)

The Federal Skilled Worker Program (FSW) selects immigrants based on their ability to succeed economically in Canada. After meeting the threshold criteria set out in s 75 of the IRP Regulations, foreign nationals who apply under the skilled worker class are assessed on a point system designed to evaluate their ability to become successfully established in Canada. Applicants are given points on the following criteria: education, language, experience, age, adaptability, and arranged employment. The point structure is set out in the IRP Regulations in ss.78 to 83. For information on how points are allocated, refer to http://www.cic.gc.ca/english/immigrate/skilled/apply-factors.asp.

For complete information of the Federal Skilled Worker Program, please refer to: http://www.cic.gc.ca/english/immigrate/skilled/index.asp

2. Investor Class

The Investor Program and the Federal Entrepreneur Program has been closed since July 1st 2012.

As of April 1st 2013, CIC opened up a Start-Up Visa Program under the Business Immigration Program, which is geared at attracting experienced business people to Canada who will support the development of a strong and prosperous Canadian economy. Clinicians are advised to check the CIC website for the latest information.

3. Self-Employed Persons Class

This category is designed for individuals who have the intention and ability to be self-employed in Canada in cultural activities, athletics, or in managing a farm. While it is not explicitly stated on the CIC website, applicants with exceptional skills, such as Olympic athletes, world-renowned artists and/or musicians, etc. are far more likely to be successful under this class. It is not necessary that the applicant actually be self-employed before coming to Canada, so long as he or she has participated for at a world-class level in their field of endeavor. However, persons not actually participating at a world-class level may still be successful if they can demonstrate they were self-employed in Category 5 of the Canadian National Occupational Classification (NOC) (occupations in art, culture, recreation, and sport) for at least 2 years before coming to Canada, and that they are likely to become economically established in Canada.

Please refer to IRP Regulations Part 6 Division 2 (ss 100 and 101), and to the CIC website.

4. Provincial Nominee Programs

All provinces, including British Columbia, have their own selection systems and criteria for new immigrants. Applicants who apply under these classes must still comply with the statutory requirements under the federal legislation (see s 87 of the IRP Regulations). Section 87(3) permits the federal immigration officer to substitute his/her own evaluation of the applicant’s ability to become economically established in Canada for that of the nominating province. B.C.’s Provincial Nominee Program has its own categories, which can be different from the federal requirements. For more information about BC’s programs see: http://www.welcomebc.ca/pnp.

5. Canadian Experience Class (Express Entry Required)

This class is designed to recognize the value of having experience in Canada, and the positive impact this experience is likely to have on a newcomer’s prospects of success. Applicants under this class must be able to demonstrate two things:

  1. At least one year of full time authorized skilled work experience in Canada. The type of employment must fall under type A, B, or O of the National Occupation Classification system (i.e. managerial, professional, or technical occupations). “Full time” work in this context means 30 or more hours of work per week, and can be made up of work in more than one skilled job, but any hours beyond 30 during that week are surplus and are not counted.
  2. Depending upon the dominant type of skilled work they are claiming, the applicant must show a minimum proficiency in either English or French, through providing a test result report from the TEF, IELTS or CELPIP testing systems.

See Operational Manual “OP 25a – Canadian Experience Class”, and the CIC website.

6. Federal Skilled Trades Class (Express Entry Required)

This class is meant to facilitate the permanent residence of skilled tradespersons in Canada. In order to be eligible for the FSTP, an applicant must

  • Plan to live outside the province of Quebec;
  • Meet the required levels in English or French for each language ability (CLB 5 for speaking, and listening, and CLB 4 for reading, writing);
  • Have at least two years of full-time (30 hours per week) work experience (or an equal amount of part-time work experience) in a skilled trade within the five years before applying;
  • Meet the job requirements for their predominant skilled trade as set out in the National Occupational Classification (NOC), (except for needing a certificate of qualification); and
    • Have an offer of full-time employment for a total period of at least one year (up to 2 employers can commit to offer employment, but all offers of employment must be associated with an LMIA) or
    • A certificate of qualification in their predominant skilled trade issued by a Canadian provincial or territorial authority (such as a Red Seal)

Applicants who are applying from outside of Canada must also show that they have sufficient settlement finds for their family upon arrival in Canada.

http://www.cic.gc.ca/english/immigrate/trades/apply-who.asp

B. Family Class Applicants

Foreign nationals can be “sponsored” under the Family Class by a Canadian citizen or permanent resident. See the IRP Regulations, Part 7.

NOTE: Sponsored foreign nationals must declare any of their non-accompanying family members (i.e. dependent children, spouses, and parents) in their initial application if they wish, at some point, to sponsor these individuals themselves. Under IRP Regulation 117(9)(d), if a foreign national fails to declare a non-accompanying family member in their application for permanent residence, that family member cannot EVER be sponsored by the foreign national (except in rare circumstances).

1. Sponsors

a) Eligibility Requirements

The sponsor must meet certain eligibility requirements. For example, the sponsor must be 18 years old, must reside primarily in Canada, must not be bankrupt or receiving provincial welfare benefits, must not be in default of a previous immigration undertaking, etc. (see ss 130 - 137 of the IRP Regulations for the requirements).

The requirement to reside in Canada only applies to permanent resident applications. Canadian citizen sponsors may reside outside of Canada when they submit the sponsorship, but must demonstrate their intention to return to Canada when the sponsored person becomes a permanent resident (see IRP Regulations 130(2)).

In some circumstances, the sponsor must prove he or she earns a specific amount of money, depending on his or her family size and the city he or she is living in. The definition of “minimum necessary income” can be found in s.2 of the IRP Regulations. This is also known as the “low-income cut-off” figure (“LICO”). Generally speaking, the LICO does not apply to sponsors who are just sponsoring their spouse or children (s 133(4)).

2. Family Members

Only certain family members are considered members of the family class under the IRPA and IRP Regulations. Specifically, an eligible sponsor can only sponsor his or her:

  • a) spouse, common-law, conjugal or same-sex partner;
  • b) dependent child (see definition below), including a child adopted abroad (adoption is difficult);
  • c) child under 18 to be adopted in Canada;
  • d) parents or grandparents;
  • e) brother, sister, niece, nephew, or grandchild who is an orphaned child under 18 and is not a spouse or common-law partner; or
  • f) relative of any age if the sponsor does not have an aunt, uncle, or family member from the list above who he or she could sponsor or who is already a Canadian citizen, registered Indian, or permanent resident. This is known as the “lonely Canadian” provision.

NOTE: There is a new requirement that sponsors meet an increased income level for sponsoring parents or grandparents.

NOTE: A major issue that arises in many spousal sponsorship applications is whether the marriage is genuine. Under IRPA Regulation, s 4, a foreign national will not be considered a spouse if the marriage is not genuine or was entered into for the purposes of acquiring any status or privilege under the Act. Applicants must prove that their marriage is valid, both in Canada, and in the country in which it took place (IRPA Regulation, s 2). While an arranged marriage is not inherently less credible, prior acquaintance to the marriage can pose some evidentiary challenges.

3. Procedure

To sponsor a family class member, a potential sponsor must fill out an application to sponsor, and the relative being sponsored must fill out an application for permanent residence. The sponsor must also provide a signed undertaking with the federal government that he or she will support the prospective immigrant and accompanying dependants, if necessary, for three years if the applicant is a spouse or conjugal/common-law partner, or ten years for most other categories of applicants (see IRP Regulations, Part 7, Division 3). If an application for sponsorship under the Family Class is refused, the sponsor may (in most cases) appeal the refusal to the Immigration Appeal Division.

In response to the 2011 two-year-pause on the sponsorship of parents and grandparents, a parent and grandparent “supervisa” was introduced. The supervisa is a category of temporary resident status that allows for the foreign national to remain in Canada continuously for 24 months, rather than the default 6 months, and can also facilitate the issuance of a multiple entry TRV for up to ten years. The parent or grandparent must not reside in Canada for more than 24 months at a time. To apply for a parent and grandparent supervisa, additional documentation such as a letter of invitation from the child, evidence of the parent or grandparent relationship and proof of private medical insurance from a Canadian insurance company are required. For more information, see http://www.cic.gc.ca/english/visit/supervisa-how.asp.

C. “In Canada” Spouses, Common-law Partners, and their dependents (Spouse or Common-Law Partner in Canada Class)

The statutory “in-Canada” family class sponsorship provisions are outlined under ss 123 - 125 of the IRP Regulations. The requirements from the sponsor are generally the same, but the Class of persons able to be sponsored through this route is limited to spouses, common-law partners, and the children or grandchildren of those persons. The entire application is processed inside Canada, and the applicants are generally landed at a CIC office in Canada. It is important to note that, aside from the question of the genuineness of the relationship, in-Canada applications are only successful if the sponsored person resides in Canada with the sponsor.

Out of status spouses in Canada – Public Policy

Prior to February 18, 2005, a Canadian citizen or permanent resident could sponsor a spouse (including married couples, common law couples, and conjugal couples) from within Canada only if the foreign national was “in status” from the date of the application until the application wascomplete; i.e. the spouse seeking permanent residence needed to already possess valid temporary immigration status at the time of application (IRP Regulations s 124(b)). This prevented, for example, failed Convention refugee claimants from marrying a Canadian and being sponsored from within Canada.

Following the introduction a public policy directive (issued under the Minister’s authority to exempt certain applicants from some requirements of the Act on humanitarian or compassionate grounds as per IRPA s 25), as of February 18, 2005, a Canadian citizen or permanent resident can sponsor a spouse regardless of the spouse’s status in Canada; i.e. the s 124(b) requirement is effectively suspended in some cases. After the sponsored spouse (applicant) receives first stage approval of their application (that is, approval in principle), they are entitled to an Open Work Permit under IRP Regulations s 207. This means the applicant is entitled to work in Canada in any capacity; in other words, unlike most temporary foreign workers, this work permit is not tied to a particular form of employment with a particular employer.

This represents a significant change in policy. However, it does not mean that every foreign national in Canada married to a permanent resident or Canadian citizen can apply for permanent resident status from within Canada. Note that this is a policy and not a law, and therefore it is subject to change at any time. Also, foreign nationals without status can apply under this class only if the foreign national:

  • a) has overstayed a visa, visitor record, work permit or study permit;
  • b) has worked or studied in Canada without authorization under the IRPA;
  • c) has entered Canada without the required visa or other document required under the IRP Regulations; and/or,
  • d) has entered Canada without a valid passport or travel document (provided valid documents are acquired by the time Citizenship and Immigration Canada seeks to grant permanent resident status).

Consequently foreign nationals who are inadmissible to Canada, entered Canada without permission after having been deported, and foreign nationals who have misrepresented themselves are not permitted to apply under this class. Always look to the most recent version of this policy. (See Appendix H of the Operational Manual, “IP 8 — Spouse or Common-law Partner in Canada”.)

NOTE: Under “in-Canada” classes, there is no appeal to the Immigration Appeal Division of a failed sponsorship. The only redress is to file a new application, file an overseas family class application, or if possible, to file for judicial review of the refusal.

NOTE: As of December 22, 2014, a one-year pilot project was put into effect that allowed CIC to issue open work permits to certain spouse or common-law partner in Canada class applicants before a decision was made. The status of the project after the one-year period ends remains unknown at this time. For more information, see: http://www.cic.gc.ca/english/resources/tools/updates/2014/2014-12-22.asp D.Caregiver Program As of November 30, 2014, the Caregiver Program (formerly the Live-in Caregiver Program) was changed to eliminate the live-in requirement, and to introduce two pathways to permanent residence: the Caring for Children Pathway, and the Caring for People with High Medical Needs Pathway. Those who are already working as live-in caregivers or who had submitted applications through the old program may choose to submit a new application under one of the two new pathways, or to remain in the Live-in Caregiver Program and apply for permanent residence under the old requirements. For the requirements for the new Caregiver Program, see:http://www.cic.gc.ca/english/work/caregiver/improvements.asp. The live-in caregiver class was a hybrid class between temporary status and permanent status. A foreign national who applied for a Work Permit under the live-in caregiver class must have met certain eligibility requirements before applying. The foreign national must have: 1.applied for a Work Permit before entering Canada; 2.completed the equivalent of secondary school; 3.completed six months full-time training in a classroom or one year full time paid experience and at least six months continuous employment within three years prior to applying for the Work Permit; 4.the ability to speak, read, and listen in English or French at a level sufficient for communication; and 5.a contract with future employer (see IRP Regulations, s 112). A foreign national must have first obtained a Service Canada Labour Market Impact Assessment/validation before applying for a Work Permit. Once a foreign national had a Service Canada validation, the foreign national could apply for a Work Permit under the live-in caregiver class. Overseas applications are being processed inside Canada. Please see Chapter 6: Employment Law for further information on live-in caregivers. You may also refer to the Live-in Caregiver Program, administered by the federal government via Citizenship and

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