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Legal Ease
Legal Ease, Lawyer
Category: Canada Law
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Experience:  Lawyer
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My husband is an American living in Canada since 2010 on a

Customer Question

My husband is an American living in Canada since 2010 on a temporary resident/visitor permit. Then an open work permit/temporary resident permit. He had to apply for criminal rehabilitation and was sent approval stating he was ineligible for the requirement (not an offense in Canada). With his last open work permit extension they granted him 6mths and issued another TRP even though he no longer needs one. The letter stated this was the final extension for the TRP and he had to leave Canada and "regularize your status by applying for a document at a Canadian Visa office abroad." His documents expire August 8/16. We are trying to submit spousal sponsorship permanent resident app but money has been an issue. We have a 2yr old and I lost my job 3mths ago. My husband is the only income right now. Do we just have to go across the border and renter for new visitor and work permits if we send a PR app before his documents expire?
Submitted: 5 months ago.
Category: Canada Law
Expert:  Legal Ease replied 5 months ago.

I am curious about one thing first. How was he eligible for an open work permit?

Customer: replied 5 months ago.
When we first applied for a temporary resident permit extension, it was granted and he was informed he could apply for an open work permit.
Expert:  Legal Ease replied 5 months ago.

That is very unusual as I don't see why he would be entitled to get the open work permit.

I also don't believe he will be provided with an open work permit again.

He can leave and go to the US and then try and re-enter Canada.

The problem is that he may not be granted entry. He has to show strong ties to back home and that he will not overstay his visit.

If you could apply for spousal sponsorship now all these issues would be resolved because then he would get an open work permit and could stay in Canada without any concerns.

If he leaves he may not be permitted back in and if he is he likely cannot work unfortunately.

Customer: replied 5 months ago.
He came here in May 2010 and we were married sept 2010 after apply for an extension. When he was granted the extension and ability to apply for open work permit, we had already been married over a year (early 2012). Immigration rules have changed since then, I believe. So, are you saying, if we file the permanent resident app asap. We can cross the border and re-enter and apply for new visitor record and open work permit? One recommendation we have received is to apply to change the TRP to a visitor permit. Is there a way that he doesn't have to leave and re-enter?
Expert:  Legal Ease replied 5 months ago.

That is not quite what I am saying.

If he applies for the spousal sponsorship he can remain here without legal status and will be able to get an open work permit.

If he applies and then leaves he likely will not be allowed back in because he cannot enter as a visitor with the intention of remaining.

Customer: replied 5 months ago.
Oh ok. I see what you are saying. So we must send in spousal sponsorship and a new application for an open work permit together, then he can stay? Even though the TRP says he must leave to regularize status from abroad?
Expert:  Legal Ease replied 5 months ago.

CIC doesn't know you are going to do a spousal sponsorship.

The open permit is part of the application process now.

But the concern is that his file is going to be a mess with CIC as they are not well organized. It may be most prudent to consult face to face with an immigration lawyer first how may have seen other unusual cases like this.

You can contact the Law Society and use their Lawyer Referral Service. You will be given the name of a lawyer and can consult with the lawyer and the first half hour will be free.

The number is:

1-***-***-**** or
***-***-**** in Calgary

Customer: replied 5 months ago.
CIC is aware of the spousal sponsorship intention. We had to wait for the criminal rehabilitation application in order to apply. In all that time we had a baby and I was on mat leave and for financial reasons, we haven't been able to afford the fees. I'm not sure why you believe this case is unusual. There's no free half hour with an immigration lawyer in my town. But thanks for the advice
Expert:  Legal Ease replied 5 months ago.

It is unusual because your spouse is on a TRP and doesn't need to be.

And because he was granted an open work permit.

You can consult with a lawyer through the referral service at a close bigger city on the phone.

Customer: replied 5 months ago.
He needed to be on a TRP when he entered. He was given one upon entry based on answering questions at the border. He now no longer needs one but was given another one even though we sent the criminal rehabilitation approval with the open work permit extension.
Expert:  Legal Ease replied 5 months ago.

I understand that.

What I am saying is that his situation is unusual as in most cases he would not have needed the TRP and should not have. They made a mistake so he is not in this situation where they say he should leave and then re-enter but they may not allow him to re-enter and there is no basis for an open work permit.

Customer: replied 5 months ago.
I believe the TRP "mistake" is the reason why we were told to apply to amend it to a visitor permit. But I didn't understand why we should have to spend the money to amend it unless it somehow changes things.
Expert:  Legal Ease replied 5 months ago.

You shouldn't have to spend any money.

They are saying he has to leave and then enter as a visitor.

But I am telling you that the officer at the border may not let him re-enter.

I don't where you are talking about spending money but he cannot enter as a visitor and remain more than six months and visitor's cannot work in Canada and he is not entitled to an open work permit.

So the only way he can remain in Canada and work is to apply for the spousal sponsorship.

Customer: replied 5 months ago.
There are fees associated with filing a "change" to the trp. Unless I am misunderstanding. Are they asking him to leave and apply for permanent residency from the USA then? Will they let him re-enter after that and continue working on implied status? I realize that a border officer can do what they want but I would hope they could not look a two year old in the face and seperate her from her father or make Canadian citizens stay in a foreign country with no where to go and a home and mortgage and other children in Canada. bot***** *****ne, are you saying it's ok to apply for PR from within Canada and disobey the requirement to leave? (Note: it has always been stated that he's required to leave upon expiration, and he's always extended or stayed in implied status while waiting for extensions but it has never stated "must leave Canada...in order to regularize status" in the remarks before.
Expert:  Legal Ease replied 5 months ago.

As I've tried to explain, if he stays in Canada and applies for spousal sponsorship from within Canada he is permitted to remain even though he does not have legal status.

There is no guarantee what the border guard will say or think.

Customer: replied 5 months ago.
doing so gives him implied status as a permanent resident and open work permit holder, correct?
Expert:  Legal Ease replied 5 months ago.

No it doesn't give him implied status as a pr.

But because you have the legal right to sponsor him the law makes an exception for spousal sponsorship and he can remain in Canada without legal status and get an open work permit.

But he will have no legal status and that is why during the entire processing time he is supposed to remain in Canada because if he leaves he won't be permitted to enter as he intention will be to remain in Canada.

Customer: replied 5 months ago.
Got it. So do we send an extension of the open work permit and include the proof of sending the pr app? I believe they would go to two separate processing centers then.
Expert:  Legal Ease replied 5 months ago.

No.

You start the application process for the spousal sponsorship and part of that application will be for an open work permit. It is included in the application for now. This was a new pilot project that started last year and so far it is still on.

Customer: replied 5 months ago.
Does the open work permit then take 36 mths to process like the pr app?
Expert:  Legal Ease replied 5 months ago.

No. He gets it in a few weeks.

The point is that they want him to be able to work while he is waiting to receive PR status. Once he gets his status he no longer needs a permit to work.

Customer: replied 5 months ago.
Well that's reassuring. Why do they tell people they have to leave if you can apply inland anyway? We don't want to get in trouble
Expert:  Legal Ease replied 5 months ago.

I don't know, honestly.

But as I've said your facts just aren't typical.

Customer: replied 5 months ago.
Are you aware of spousal sponsorships that have been inland, applied inland and not left Canada even though the permit said to?
Expert:  Legal Ease replied 5 months ago.

Yes because aside from visitors from visa exempt countries all have visitor visa's that expire as so work permits.

And in each case of a spousal sponsorship if they decide to apply from within Canada they do not have to leave.

The exception is if there is a removal order and there has not been such an order.

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