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Out of status applicants in U.S.A. eligible to apply

Posted On 2014 May 16
Comment: Off

By Atty. Henry Moyal

MOYAL & MOYAL Canadian Immigration Lawyers (screenshot courtesy of www.moyal.com)

MOYAL & MOYAL Canadian Immigration Lawyers (screenshot courtesy of www.moyal.com)

Q. I read that Canada’s immigration program is open and that there are many occupations in demand in Canada. I’m an experienced engineer and my wife is a manager. I believe we are qualified but need your final opinion. Most importantly, I am hesitant to apply because I am out of status here in Las Vegas. Can I file an application while I have no status? Do I need to leave the USA to do my medical?

A. The most important part of the assessment is to determine if you are qualified under the new rules. If you are not, then the issue of your status becomes irrelevant. That being said, you are correct in saying that Canada has recently opened its policy to a wide array of occupations. Many occupations which have not been in demand before are now in high demand. Similarly, engineers and managers are always in high demand in Canada. If you have at least one year of full time work experience (within the last ten years) and a strong level of English then you are eligible to apply. No job offer is required. No relative in Canada is required (to petition you). Finally, a person’s status in USA is not a factor. If you have lost status in USA you are still eligible to apply. We have been successful in doing so many, many times. You also do not need to leave USA to obtain medical or police clearances.

Q. What are the benefits of applying to Canada vs. USA immigration?

A. Any discussion on benefits to immigration should, in my opinion, first tackle the general method in which one can immigrate. The USA immigration system is primarily family based or employer based. That is, an applicant must have a relative or employer to petition them for a green card. It is unlikely then for a person to “do it on his own” in order to immigrate to the USA. Canada, however, has a totally different outlook on how it selects its immigrants. Canada’s immigration system does allow family sponsorship but only in limited cases. The bulk of Canada’s immigrants are those who apply without anyone’s assistance. That is, an applicant who has the required education, language ability and work experience can apply on their own. No assistance from an employer or relative is required.

Once in Canada as an immigrant, permanent residents enjoy an array of benefits including free health care, free education up to the end of high school and a diverse multicultural population.

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. I would think twice before marrying. Not only will he not be able to stay but it 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 an enforced removal order. Either not marry or have spouse leave Canada.

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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