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An expired work permit could be fatal to permanent resident application

Posted On 2014 Aug 29
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Henry MoyalQ. I entered Canada as a live in caregiver and have been working for over two years. I did not apply for permanent residence yet. My work permit expired five months ago and I did not renew it because I had a problem with my passport. Can I apply for permanent residence now and obtain an open work permit?

A. No. One of the conditions of becoming a permanent resident under the live in caregiver category is that you are the holder of a valid work permit. The fact that you let it expire is a problem that has essentially taken you out of the program. You are also past the statutory restoration period. Best to obtain advice on seeing whether you are eligible to apply under a different category.

 Q. I’m a Filipina woman living in Dubai, UAE. I have over six years of work experience as a nurse and I am interested to move to Canada. There is a local agent here who says she can find me an employer and that I can enter Canada as a domestic helper. I was told that I could be a nanny for a few years and then apply to become an immigrant. I would rather work as a nurse but if that is my only option I am thinking of paying this agent to work on my work permit. I need your opinion on what is best.

A. My opinion is that you should not pay any agent to find you an employer. Firstly, that is not permitted. It is illegal for any agent to charge a fee to the worker (they could charge the employer). Second, there is no guarantee that the job offer or visa will materialize. That is, if you pay and the agent says “we will do our best to find an employer”, then how do you really know if they tried or not?. I would therefore stay away from that option. Finally, in your particular case, you do not need to rely on a mere work permit. As a qualified and experienced nurse you can apply directly as an immigrant. You do not need to work for two years. You are likely to qualify on your own and immigrate to Canada with your children and spouse all at the same time. Seek professional help from a Canadian Immigration Lawyer before paying the agent.

 Q. I want to apply to be an immigrant of Canada with my daughter. I am a physician with years of experience. I believe I am qualified. The problem I am facing is with my wife and child. We are not divorced. I cannot locate my wife who needs to give me consent to divorce or to permit me to immigrate with my daughter alone. I cannot obtain a divorce because I do not know my wife’s address. I seem to be going in circles trying to comply with all the requirements.

A. It is indeed a problem that seems to be common. The fact is that if you are not divorced or annulled then your wife is considered to be a family member – like it or not. As a family member she must be declared on your application, she must complete forms, she must undergo a medical and provide police clearances. Another fact is that you will not be able to immigrate with your daughter unless the other parent gives signed/notarized consent. To make things go smooth, I suggest you file for a divorce and obtain sole custody. In that way, both problems are resolved. To get a divorce without knowing her whereabouts may require a motion to the court but is possible.

Q. I’m a live-in caregiver in Canada. I have my open work permit. I will be giving birth to a child in Canada soon and I am planning to marry the father of the child early next year. The problem is that my fiancé is a failed refugee claimant. He has not been asked to leave Canada though. If we marry will he be able to remain in Canada?

A. Unfortunately, marrying this individual could potentially jeopardize your application. All those years working as a live in caregiver will be lost. You may get refused and no one would be an immigrant. I am saying this because one of the requirements for you to become an immigrant under the live in caregiver class is that no dependant must be inadmissible or have an enforceable removal order. If you marry, your spouse is your dependant and he has enforced removal order. Either not marry or have spouse leave Canada. In rare situations it may be possible to marry and then discuss the predicament with the immigration officer who will advise when indeed spouse must leave.

Attorney Henry Moyal is a certified and licensed immigration lawyer in Toronto, Ontario. The above article is general advice only and is not intended to act as a legal document. Send questions to Attorney Moyal by email canada@moyal.com  or call toll free 1-888-847-2078.

 

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