spousal sponsorship in Canada
Spousal sponsorship is a process that allows Canadian citizens and permanent residents to sponsor their foreign spouse or common-law partner to come and live in Canada as permanent residents. The following are the basic requirements for a spousal sponsorship application for Canadian immigration:
A few specific issues applicants for sponsorship may encounter during the process include:
Requirement 4 can be quite difficult in some situations. Examples of evidence include:
The Spousal sponsorship application process can be complex and time-consuming. Potential applicants should seek the advice of an immigration lawyer to ensure that all the requirements are met and the application is drafted and submitted correctly.
IRCC Strike alert
On April 19, 2023, many IRCC employees began a strike, as part of the Public Service Alliance of Canada's labour dispute with the Canadian government. This is having some effect on immigration applications, particularly those for permanent residents. New applications can still be submitted as usual, both online and by mail, but non-urgent applications will be delayed for the duration of the strike. Extensions of a stay in Canada can still be submitted, and maintained status remains as usual for those with applications still in processing. For more information, please see this link www.canada.ca/en/immigration-refugees-citizenship/labour-disruptions.html
Dependent Child Sponsorship
New permanent residents of Canada sometimes did not include dependent children on their original application. Thankfully, permanent residents (and citizens) can sponsor a child and reunite their families through the child sponsorship path if they were excluded for whatever reason.
As with all sponsorships, the parent/guardian seeking to be sponsor must satisfy certain criteria. Among other factors, the sponsor must be at least 18 years old, currently live in Canada, not be receiving social assistance from public funds (with some exceptions), and undertake (i.e. binding promise) to provide for the financial, medical, and other assistance to the applicant for a prescribed period. This undertaking is unconditional, regardless of sudden changes in the sponsor’s martial status, finances, or other major change in life, so it is not to be taken lightly.
The definition of ‘dependent child’ for immigration purposes is either:
If the application is submitted before they turn 22, their age is ‘locked-in’, no matter how long it takes to process the application to make a decision. However, it is always better to begin working on the application sooner rather than later, in case gathering some documents is more difficult than others.
They must be either the biological children of the sponsor or sponsor’s spouse or adopted by the sponsor or their spouse to be sponsored. More distantly related children such as nieces and nephews cannot be sponsored unless in very specific situations, such as being orphans with no other relatives in the country of origin.
Much of the IRCC processing of these applications involves verifying the relationship between children and the sponsoring parent/guardian, to prevent fraud and trafficking.
Unless the sponsor is already the sole legal guardian of the children, another parent, or guardian will have to sign a permission form confirming that they can leave the country to live with the sponsor in Canada. If there are custody arrangements in Canada or the country of origin, those must be included in the application as well. The other parent/guardian must give permission, if they are not accompanying the child to Canada, and the sponsor must show that they have a relationship with the child or children. The burden of proof is on the sponsor to prove these facts to IRCC’s satisfaction. Proof of the relationship can include, but is not limited to, the birth certificate showing the name of the sponsor, or, if the child was adopted, an adoption certificate. Unlike common-law and spousal sponsorships, this is often much easier to obtain, since adult relationships made for the sake of immigration fraud logically involve much less effort than a child does.
An experienced representative, like Luka Vukelic, can greatly strengthen the chances of a positive decision on what can often be a complex application process.
As the most populous province, Ontario’s immigration nominee program (OINP) is one of the most used.
It accepts applications from those who the OINP determines fulfill its needs for work skills, experience, and education to improve its economy. The province partners with the federal government to nominate candidates, which assists them in their permanent residency application by increasing their points in the federal Express Entry system, virtually guaranteeing an Invitation to Apply for permanent residency. There are currently six nomination streams. Requirements can change over time, and streams can be opened or closed without warning by the province. This post will discuss each stream and their requirements.
Employer Job Offer: In-Demand Skills Stream
This is a stream for foreign workers both inside and outside Canada who have a job offer in Ontario and prior work experience in the province. It lets those with job offers in high demand occupations in Ontario apply for permanent residency. The work must be full-time and permanent, in a specific eligible occupation, at or above the median wage in the job market, and also be necessary for the employer’s business.
The full list of eligible occupations includes, for example, truck drivers, construction trades, and farm workers. The stream requires you have at least nine months full-time experience working in Ontario in that occupation. At least 30 hours of paid work per week in those nine months is required. The applicant must show their experience is in the National Occupation Classification (NOC) that is being sought, in terms of duties performed.
An applicant must also have a minimum of language skills at Canadian Language Benchmark (CLB 4), education of at least high school (or a foreign equivalent), and enough money to settle in Ontario, which can be shown either with the job offer and its compensation or through financial documents.
The employer must also follow regulations, including minimum yearly revenue, operating history and number of employees. These vary on whether the job is in the Greater Toronto Area or outside it.
PhD Graduate Stream
This stream is geared towards international students who obtained a PhD in Ontario in the previous two years. It must have been from an eligible university in Ontario, with at least two years of studies. Before applying, the graduate must have lived for at least one of the last two years in Ontario, and shown their intent to remain in the province, which they show through their ties to the province. These can include, for example: property ownership/lease, work (both current and past), family in the province, among others.
As with the job-offer stream, they must show there is enough money for them and any family to settle in Ontario.
Express Entry French-Speaking Skilled Worker Stream
This stream is for skilled works that are bilingual in Canada’s official languages, with CLB levels of 7 and 6 for French and English respectively.
In this stream, an applicant must first create an Express Entry profile with IRCC and be accepted into the Express Entry pool’s minimum. The two federal programs the applicant can meet are the FSWP (Federal Skilled Worker Program) and CEC (Canadian Experience Class).
The OINP will send a Notification of Interest if they find a candidate in this program in the pool of candidates and give a certain amount of time to apply. This must include, in addition to the proof of bilingual skills, education, and work experience requirements, an intention to live in Ontario, and the money to do so.
Human Capital Priorities Stream
This stream is an Express Entry pool-linked stream for skilled workers, with the same minimum requirements for work experience and education, but unlike French-language skills stream, the HCP seeks those with experience in specific positions. These vary depending on each draw the province makes, and the province lists them after each draw is completed, along with the Express Entry scores that foreign and Canadian work experience applicants had.
Skilled Trades Stream
This stream is another Express Entry-linked stream, but for the federal category of Skilled Trades. See the blog posts on Express Entry for more information.
The entrepreneur stream is for experienced business owners and managers who wish to start a new business or buy an existing one in Ontario. The applicant must file an Expression of Interest with the province which includes a business concept and information about their experience, net worth, and personal investments. After being scored by OINP, they may be issued an Invitation to Apply.
Many countries have permanent resident paths based on investment in the local economy. These are set up as policies to boost economic growth through local hiring, building facilities, and selling products and services. Canada used to have several passive investment programs that allowed for investors to be rewarded with permanent residency, but these have almost all been deprecated. Quebec alone runs one, but it is now on pause as well.
Investment in Canada must now be active, with either a start-up, or buying an existing Canadian business from someone else, and actual running it. In addition to the federal Start-Up Visa program, different provinces have different ways to invest in their economies. For example, the prairie provinces of Alberta, Saskatchewan, and Manitoba have farm investment streams (all of which require active management), while other provinces have a variety of other types of businesses foreigners can invest in.
Because running a business is a major endeavour, applicants must show they have some language skills, available funds, and experience as business owners or managers in the past. Commitments to hire certain numbers of Canadians, and expectations of profit, are also important. Prior business trips to Canada are also important, not just for their benefit, but because some programs give additional points for doing them.
Since these immigration paths are overwhelmingly economy-focused, applicants are rewarded for investing in rural or otherwise neglected areas that do not receive much immigration or new employment opportunities. Incentives include lower net-worth or minimum investment requirements. These investment streams all require preparation, even more than employment streams do. Applicants should be prepared to have their business plans closely evaluated, along with market research, profit expectations, and other pertinent details.
Once a business is running for some time, it is evaluated by the provincial or federal government to ensure it has or will meet the promised goals.
Because of the great complexity of entrepreneur immigration programs, it is not recommended to apply without a great deal of planning. Speaking to an experienced immigration lawyer is the best way to minimize risk, in the absence of any passive investment path in the future.
Open Work Permits
Open Work permits are some of the most desirable work permits, as they avoid the time and expense of an LMIA while allowing the holder flexibility to work in almost any type of employment in Canada. The previous post discussed one kind of open work permit for those who graduate from a Canadian college or university, but a number of others exist. IRCC provides them for several different situations. Some permits will be limited depending on another persons status, while others can be long term and repeatedly renewed.
In a spousal sponsorship, the Canadian citizen or permanent resident spouse (or common-law partner) often desires their partner to work in Canada before the application is finished processing. For both inland applications, the sponsored person can submit an open work permit application that will allow them to work in Canada while the main application is processing. As open work permits are processed much more quickly than PR, often in a few months or even less, this is a strongly desirable option, and the majority of sponsors have no issue applying for both at once. It makes sense in policy terms that partners should be able to work (and thus pay taxes), rather than waiting idly for the year or more that processing will take.
A study or work permit holder’s partner can also apply for an open work permit, if they meet certain conditions, such as the work being of a certain skill level, and the main permit holder’s permit not expiring within the next 6 months. IRCC does not provide such short term work permits, so it is advisable to apply for the open work permit as soon as possible when he first work permit is approved.
The same holds for study permits; apply for the open work permit as soon as the partner’s classes start, to obtain the maximum period of time. They must be eligible for a PGWP (see prior post).
Both of these work permit applications will require other information, such as confirming the validity of the relationship, or the submission of the sponsorship application. The former can be difficult, as IRCC requests particular evidence of a relationship in their attempts to limit immigration fraud.
Open work permits can also be provided for refugees, refugee claimants, and other protected persons and their family. As the refugee and asylum processes can be quite long, this allows them to continue working while their claims are evaluated.
Because of the wide variety of options for obtaining an open work permit, it is recommended that you speak to an experienced immigration lawyer about them.
Post Graduate Work Permits
The advantages of studying for a higher education in Canada are known worldwide. With one of the best education systems, welcoming culture, and growing economy, international students come in very large numbers to study here. A major advantage, apart from the value of the education itself, is the opportunity to work in Canada for longer periods. This is not just part-time off-campus work, or co-op terms as part of the conditions of a degree. The Post-Graduate Work Permit (PGWP) is an open work permit that allows full-time employment by graduate students for up to 3 years in almost any occupation, which gives both flexibility and the opportunity to gain valuable Canadian work experience. It is a natural prior step towards applying for permanent residency through Express Entry (see the prior series of posts on that program for more details). A spouse or common-law partner may even qualify for their own open work permit, as well.
For students interested in this benefit (or even prior to being admitted to the school), certain details are very important.
Normally, the work permit cannot be extended beyond the initial validity period, but in 2022 and 2023, due to the impacts of the COVID-19 pandemic, IRCC made policy changes to allow extensions of 18 months, along with interim authorization. The normal 90 day limit on restoring status is also waived in order to allow those who left Canada when their permit expired to return and thus continue contributing to the Canadian economy.
It is self-evidently good policy to allow former students who obtained an education, often over several years in Canada, and then worked for perhaps just as long to be allowed to remain in Canada to prevent any gap in employment between the expiration of the work permit and the submission of an application for a bridging work permit as part of a PR application.
More information about bridging open work permits will be detailed in the next blog post.
LMIA Exemptions Blog Post
Given that LMIAs can be costly and time-consuming to obtain, for both the worker and their potential employer (see prior post), finding a proper exemption is quite important. IRCC gives exemptions from the LMIA process for some kinds of work permit applications, based on practicality, fairness, and national/international interest.
LMIA exemptions are organized into codes, which are put in the work permit application, to denote the kind of exemption for which the worker qualifies. Officers will, of course, review the circumstances and determine if the exemption is valid or not.
Some of these codes are self-evident; an open work permit allows a worker to choose any employer in Canada (with a few minor exceptions). It would make no sense to do a Labour Market Impact Assessment in this situation). The work itself sometimes also precludes the need for an LMIA; pilots of aircraft, foreign security guards, US border agents (such as at the Canada-US border posts) are also self-evidently not part of the Canadian labour market. Athletes and coaches visiting Canada for a game, short-term business visitors, investors, and others also have their own codes. International students doing work co-op, medical fellows, religious/charity workers, and many others fall under such limits.
Other codes are dependent on the prospective worker themselves; do they have a specialized skillset or education that cannot easily be found in Canada? If so, the specialized knowledge code can be used, but the applicant and the employer must be prepared to show evidence that they are in fact qualified and have the education/experience they claim.
Another major exception to LMIAs is the Intra-Company Transferee (ICT), which is for foreign workers being moved to the Canadian subsidiary or branch of a foreign company. The application must still show that the employee is necessary, and the employer will need to provide the appropriate background information.
If the employee is an executive/manager, it should be easy to demonstrate such, but specialized knowledge can be more difficult. Showing that they are critical to the Canadian portion of the business may be more difficult, since it must be shown that the knowledge is unique or uncommon in Canada with the existing employees and any potential Canadian employees.
For any work permit, regardless of LMIA or not, having an experienced lawyer is important, to ensuring that a work permit or an extension is successful despite any complexities that may arise.
Labour Market Impact Assessment
The majority of foreign workers in Canada require a work permit; there are limited exceptions for special scenarios and types of work, usually situations where it would be impractical or impossible to go through the same process. For the rest, a work permit may either require an earlier step (Labour Market Impact Assessment, or LMIA) or not. This post will be a brief overview of the former.
The Temporary Foreign Worker program is designed to help employers with labour shortages in Canada that they cannot meet with recruitment from Canadian citizens (or permanent residents). To verify that this is the case, the employer must provide details of the position and the person/people being hired to a government agency (Employment and Social Development Canada).
ESDL will evaluate the position based on the provided details, to determine whether the effects of hiring them will have a positive, neutral, or negative effect on the Canadian labour market. In other words, they check if the hiring is truly necessary, or whether a Canadian or permanent resident could have filled the same role instead.
The types of applications are divided by whether the wage is at or above the median wage in the province/territory (high-wage stream), or below (low-wage stream). There are also separate categories, for agricultural workers, caregivers, or specialists with high skills in a particular industry.
Regardless of the subcategory, an employer needs to be verified as legitimate Canadian businesses, if making their first application. Regular LMIAs afterwards can then skip this step.
A major part of an LMIA application is the advertising requirements; employers must show they advertised the position in various locations with no success in finding a good candidate before they resorted to offering the job to a foreign worker. The application must also list details of the job offer, including wage/salary, benefits, specific duties, required skills/education, etc.
After ESDC receive an LMIA application, they will evaluate the work based on all these factors and the current status of the job market for the position, at which point they will issue either a positive or negative assessment (or neutral). A positive or neutral assessment allows the applicant to apply for a work permit (within a set amount of time).
With the work permit application, the LMIA number must be included, along with the details of the job offer/contract. Although LMIAs are usually valid for 1-2 years, it is always best to make sure the work permit is as strong as possible, to avoid wasting time and expense.
Due to the advertising requirement, LMIA processing times, and work permit processing times, it is not necessarily the fastest (or cheapest) way for someone to begin working in Canada. The next post will detail the various LMIA exemptions in more detail.
EXPRESS ENTRY PART FIVE
Understanding the rounds of invitations for Express Entry is important for anyone who wishes to proceed in the program, and this blog will detail that process.
Periodically, IRCC, through a Ministerial Instruction, issues Invitations to Apply to candidates in the Express Entry pool. These instructions are somewhat technical, but they state exactly what the Immigration Minister sets for that round in terms of rankings (i.e. points in the profile), class (i.e. which of the 4 subprograms is selected), and the total number of invitations.
The timing of the ITAs varies due to internal and external events, and even immigration lawyers have limited insight into their internal processes. However, certain patterns are apparent from the public data. Draws generally occur, every two weeks, in order to align with IRCC’s capacity for processing.
The categories drawn are also affected by outside disruption; in March 2020, with the vast disruption of the pandemic to the world (and immigration in particular), IRCC began to focus on those who did not face entry barriers to Canada, by restricting invitations to the Canadian Experience Class and the Provincial Nominees. The former are already working in Canada, and so faced less disruption to their immigration for obtaining PR, while most of the latter were either already in Canada or had job offers, and so were economically important enough to be allowed to travel despite the pandemic border restrictions. Those in other categories were left out for lengthy periods of time in 2020, 2021 and the first half of 2022. Many profiles expired in the meantime, and candidates had to either recreate their information for another year, or in some cases, aged out of the Express Entry program completely.
Since then, as the pandemic restrictions were lifted, the ITAs have returned to the old biweekly pattern, with all classes being regularly included in draws. Periodically there will still be draws for PNP only, but these are now the exception. With the barriers of the pandemic gone, having a higher score is now important again, as they are the main way IRCC selects candidates.
Thankfully, IRCC posts the number of invitations and the lowest score selected with each draw on a public website at: https://www.canada.ca/en/immigration-refugees-citizenship/services/immigrate-canada/express-entry/submit-profile/rounds-invitations.html, so it is easy to see the ballpark range for an invitation, based on prior history. However, there will always be some uncertainty, and every once in a while they will do something unexpected in scoring, such as February 13, 2021, in which a very large number of invitations was sent out due to an unusually low cut-off score. Many who would otherwise never have qualified for an ITA were put on the road to PR. Such a draw has not has not recurred since, but the lesson is to expect the unexpected. IRCC has in the past, and will in the future, announce make changes due to new public policies and their own internal requirements, which even the most well-informed outsider cannot predict.
This blog details the many legal issues among Luka's practice areas, for a general audience. None of this information is a substitute for legal advice.