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By Attorney Henry Moyal |
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CANADA vs. USA – DIFFERENT IMMIGRATION RULES |
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Q. I am writing to you from New York. I
have been living illegally in USA for over a year and I am interested in
relocating to Canada. I tried to have my current USA employer petition me
for a work permit but it did not work out. I do not have a job offer in
Canada nor do I have any relatives. Will it be difficult for me to pass
without an employer?
A. Contrary to popular opinion, it is much easier to immigrate to Canada
than to USA. In general, USA immigration is employment based which means the
easiest and fastest way to enter the USA is via a work permit. After that,
an applicant can “adjust their status” for permanent residence. Unless a
person is sponsored by a close relative, rarely do people immigrate to USA
directly and must enter first on a work permit (which means a person must
have an employer first).
Canada is more or less the opposite. It is not so easy to enter as a worker
(unless you have an employer with a validated offer of employment from Human
Resources Canada) but much easier to immigrate if you qualify. A relative or
a job offer would help but is not required. Therefore, if you are educated
and have work experience in a skilled occupation you will likely qualify for
permanent residence. The fact that you overstayed in USA is usually not a
problem.
There are other noteworthy differences between the two systems:
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USA has a priority date system that lets applicants know where their
application is in the system. Canada does not.
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Canada does not have a quota of the number of immigrants entering or for
work permits. USA does, so if you are applying for example an H1B visa and
the quota has been filled, you must wait until the next year.
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Canada permits its visitors to renew their visitor status while in Canada
much easier. After 9/11 USA has restricted the time a visitor can remain in
the country and much more difficult to extend.
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USA keeps a tracking system of who come in and out. Canada has no record of
who / when a person leaves.
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USA permits the sponsorship of siblings. While the application can take a
decade to be processed, Canada has eliminated the sponsorship of siblings
altogether.
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Q. I tried to renew my visitor status and was refused. I was told that I
can appeal the case within 90 days of the expiry. The problem is that I sent
my application before the expiry and it took immigration nearly two months
to send me the refusal. Does the 90 day appeal clock start at the time of
the expiry or the refusal date?
A. Just to be clear, I believe you are referring to a restoration
application, not an appeal which is made to the Federal Court. In my
experience, Canada Immigration has used the refusal date as the start of the
90 day period to file the restoration application. Note as well, that the
fee for the restoration application is $200 and not $75.
Q. I sponsored my parents two years ago. At that time I had a good job
that paid well. There was no doubt I met the income level at the time of
sending the application. I am told that my parents’ visa will not be ready
for at least another year. I recently lost my job and I am worried that by
the time the visa is ready I will be short of the income requirement. What
if they refuse me? It is not my fault immigration took three years to
process the case. Will they look at original income or the income when the
visa is ready?
A. Perhaps both. Without question, a person must meet the income at the time
of sending the application. Applications are date stamped and even if the
officer looks at the case two years later, the sponsor must have met the
income level for the 12 months preceding the application. The second part is
a bit more tricky. Many times visa officers will not ask for updated income
from the sponsor three years after but they have the right to do so. I have
seen several cases where the sponsor met the income initially but failed to
meet the income level when requested to do so years later. The result is a
refusal which should be immediately appealed to the Immigration Appeal
Division.
Attorney Henry Moyal is a certified and licensed Immigration Lawyer in Toronto,
Ontario. The above article is general advice only and
not intended to act as a legal document. Send questions
in confidence to Balita or to Attorney Moyal by fax,
mail or email canada@moyal.com
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