by Andy J. Semotiuk U.S. and Canadian Immigration Lawyer
What are some common issues faced by cross-border couples, seeking to immigrate to the United States or Canada?
An American and a Canadian meet. They marry, or they want to get married, and settle in either country. This is a task that requires a strong background in the immigration laws of both countries, so that the couple can be together and problems can be avoided. First and foremost, since marriage for the purpose of obtaining permanent residence in either country is not allowed, it is important for such a marriage to be a real one. While the immigration process can be a daunting one, the best approach is to understand the options and procedures that are available.
SETTLING IN THE USA
An individual seeking to reside permanently in the States will be looking to obtain a green card. There exist several different categories under which people can apply for a green card. For instance, you may qualify through the employment category, or as an investor. However, spousal petitioning has certain benefits. For instance, there is no wait time for applying, and there is no quota for the number of spouses that can receive green cards in any given year. If you qualify through your spouse, but your marriage is less than two years old, you will obtain a two-year conditional status, which can subsequently be adjusted. There are three different spousal sponsorship scenarios in US immigration: applying to join your spouse in the US, applying to remain with your spouse in the US, and applying to enter the US for the purpose of marrying a fiancee.
Joining your spouse in the US
The application to join your spouse in the US may take 6-8 months. Whereas previously an application would require you to wait outside of the US for the entire sponsorship period, new rules put in place in 2001 now allow you and your children to obtain temporary visas to the US and process the paperwork within the country. However, once you’ve applied for a green card, it can be difficult to get a non-immigrant visa should you desire a temporary stay in the US during the processing period. It is also worth mentioning that entering the US on a temporary visa after the marriage and then applying for a green card from inside the country is not looked upon favorably, although an application will not be automatically denied solely on that basis.
Remaining with your spouse in the US
There are certain benefits in applying for a green card from within the USA. The biggest one is that, although the process can take over a year, you are already in the country with your spouse. If problems arise in your case, you will be able to wait for a decision in the States. You may be able to apply for work authorization soon after filing your application, and certain paperwork can be conducted more smoothly. Unfortunately, you won’t be able to leave the US during processing without getting special permission - even for an emergency.
Entering the country to marry your fiancee
American immigration allows you to enter the States to marry your fiancee, provided you do so within 90 days. You can then immediately apply for a green card. Although Canadians typically don’t require a visa to visit their neighbour to the south, this is an exception to the rule. Although this can take 12-18 months for processing, it is the legal way of entering the United States with the intention of marrying a US citizen. You can also work and live in the US from the date of filing.
Entering the US under the pretext of being a visitor, and then marrying a fiancee and applying for a green card, risks fraud. The amount of time that passes between entry into the country and a marriage affects the onus placed on the couple to disprove fraud. Getting married within thirty days of entry presumes that the intent of entering the country was for marriage. With a marriage after thirty days, this presumption is downgraded to an inference. A marriage after sixty days requires a burden of proof of its validity. A couple in that position might consider processing their application from within the country.
Are children included in the process?
A child will qualify under the petition if the parents wed before the child turned 18.
SETTLING IN CANADA
Canadian immigration law in the area of spousal sponsorship has been extended to include common-law partners (proof of having lived together in a sexual relationship for at least a year) and those who have been involved in a sexual relationship with a foreign national for a year. The Canadian equivalent of the green card is permanent residence, which allows one to live and work anywhere in Canada, and to ultimately qualify for Canadian citizenship. The average processing time is approximately 6 to 12 months. However, depending on specific circumstances and regions, it may be shorter or as long as 36 months. You can apply for permanent resident status and temporary status at the same time. However, your application for temporary status may be affected if immigration officials question your intention to leave Canada when it expires. As with American immigration, you may qualify through different means, such as immigration under the business class or the skilled worker class. However, we will examine immigration through spousal sponsorship. This sponsorship can be done by a Canadian citizen or a permanent resident.
Joining your spouse in Canada
A spouse can be sponsored to enter Canada for permanent residence. This application, which also applies to common law and same-sex relationships, requires a sponsorship, an application for permanent residence, and some regional-specific work.
Remaining with your spouse in Canada
If you have been living together in Canada, you can sponsor your spouse from within Canada. As with sponsorship of a spouse who is outside of Canada, this applies equally to common-law and same-sex relationships. While this application process is taking place, your spouse has to take care to maintain legal status in order to continue remaining in Canada.
Entering Canada to marry your fiancee
The designation of fiancee has been removed from the new rules pertaining to Canadian immigration. As such, such a sponsorship would most likely require an application under Humanitarian and Compassionate consideration. This application is somewhat more cumbersome, as it requires meeting certain minimum income and medical requirements that are otherwise not required for spouses, common-law partners or children.
As mentioned in the discussion on US immigration, entering the US under the pretext of being a visitor, and then marrying a fiancee and applying for a green card, risks fraud. The amount of time that passes between entry into the country and a marriage affects the onus placed on the couple to disprove fraud. A similar situation exists in Canada, although it is not formalized in the law.
Are children included in the process?
Spousal sponsorship includes dependent children. This is the case whether the application takes place from within or outside of Canada. Dependent children are those under or over 22 years of age, depending on their particular circumstances.
Contact me if you would like assistance with your case. You can reach me at Andy@myworkvisa.com or you can call me at my law firm details of which are on this web site.