Out of Status in Canada? You May Not be Out of Luck

The COVID-19 pandemic has caused new novel issues to arise in the immigration law field as a result of the unprecedented nature of the travel restrictions that have been imposed in order to fight the virus. Since the onset of the restrictions in March 2020, people who were planning to travel have been stuck, and as a consequence of being stuck, they may be out of status in the country they cannot travel from.

For example, a foreign national who came to visit a spouse or common-law partner who is a permanent resident or Canadian citizen in Canada may have arrived on a temporary status with the end goal of converting their temporary status into permanent status. However, because of the onset of the pandemic and the slow down in immigration services, these people were left in a state of limbo where they had fallen out of status but were unable to leave Canada because of the travel restrictions.

Usually people in this situation, that is being out of status while still in Canada, would be considered to be in Canada illegally. Being in Canada illegally means they could be subject to a removal order which would force them to leave the country. Further, a removal order could potentially bar the person who receives it from returning to Canada in the future, so for people who have a spouse or partner in Canada, it is imperative for them to avoid becoming subject to a removal order.

In-land Spousal Sponsorship

Thankfully for the people in this precarious predicament, Immigration, Refugees, and Citizenship Canada (“IRCC”) has considered this specific situation and provided a remedy for those who may have fallen out of status on a temporary visa within Canada. In order to make a determination on those who have fallen out of status, the IRCC considers individuals who have ties of marriage with a Canadian in Canada, who have strong links with Canada, and have a good likelihood of becoming a Canadian in the future. The policy from the IRCC further states that the IRCC will not consider the lack of status to require the person to leave Canada and then re-apply for entry and be re-sponsored as a spouse. Instead, the Canadian in the couple can make an undertaking of support and sponsor their spouse according to the rules of sponsorship.

In addition to the ability to remain in Canada while the sponsorship application is processed, those who are the subject of an application may be entitled to an open work permit while they wait. An open work permit is not tied to a specific employer, meaning that the holder is entitled to seek legitimate employment anywhere they please and earn an income while they await becoming a resident.

Limitations on In-Land Sponsorship Applications

In addition to the many benefits of an in-land sponsorship application, there are also strict limitations as well. For instance, there is no right to appeal the decision on the application. Further, because the subject is already in Canada there may be less urgency, and therefore the decision process may take longer than someone applying from outside of the country. Lastly, the subject of an application will generally have to remain in the country while the application is processed. Although in light of ongoing travel restrictions, this limitation at least should not be too much of an imposition.

This leniency from the IRCC should help many couples through the uncertainty of the pandemic, as, the IRCC is giving spouses without status a chance to become Canadians.

Contact Garson Immigration Lawyers in Toronto for Experienced Advice on a Range of Immigration Concerns

Make sure you stay updated on regional restrictions and regulations before you make travel arrangements. If you are planning to travel, make sure you qualify as essential or prepare an exemption request. Depending on where you are going, you may also need a 14-day quarantine plan. If you have questions about where you can travel, please do not hesitate to contact us.

The immigration lawyers at Garson Immigration Law are continuing to monitor the immigration fallout in relation to COVID-19 on both sides of the border and will provide updates as the situation develops. If you have any questions about your potential classification as essential or about how you should comply with the changing regulations, do not hesitate to reach out to us online or by calling us at 416-321-2860.