Hello, I'm hoping someone out there will be able to clear the muddy waters of information I've read so far. Here is the bottom line of my situation:
I am a Canadian woman living in Alberta wanting to marry my American fiance currently living in Texas. We want to marry and live in Alberta sometime this year.
I've been trying to figure out the best routes possible and what will be easiest for us emotionally and financially. I work full time at a decent job with full benefits, own my own home and have two teenaged children, hence the reason it would preferable to stay here in Canada.
A couple of the biggest questions are:
1. My fiance has a criminal record for a misdemeanor charge in which he served a few months jail time six years ago. (cruelly enough, this misdemeanor wouldn't have even resulted in jail time here in Canada) No trouble since, except some unpaid traffic tickets. Will any of this result in him being denied entry or landing?
2. Once here, if allowable, how long before he can work? It's very important to him to be able to take care of his family, regardless of whether or not we can scrape by on my income alone.
3. What would be the first steps and how soon should we be making them?
Thanks so much for any help any of you can provide.
Dru
The basic information for bringing a foreign national spouse to Canada is as follows: the Canadian spouse sponsors the FN for permanent residence. There are two "types" of processes for accomplishing this - the "inland" process where the application is processed entirely within Canada. An eligible inland applicant will be able to apply for an open work permit after having passed the first stage of assessment - but even in a best case scenario where there are absolutely no complications with processing, that takes at least six months. Until first stage approval the applicant, if they hadn't been previously admitted to Canada on a temporary work permit, is not allowed to work at all. If there are complications with processing, and the application is referred to a local CIC office, it can take up to two years just to get first stage approval. Also, inland applicants cannot finalize their application unless they are in Canada - so they're encouraged to stay for as long as it takes to get the process finalized (up to 18 months for a straight-forward case - much longer for a complicated one) because, if they leave and are not readmitted, the application is forfeited.
The other option is the outland process - where the application is processed at a visa office in the applicant's country of birth. This type of application is typically processed much faster than an inland ap, and the applicant can be anywhere in the world (including Canada) and it doesn't affect processing. US citizen applicants are processed through Buffalo - and straight-forward applications are normally finalized in between 4-6 months time. More complicated applications can take up to a year or more. If an outland applicant is staying in Canada, they're not authorized to work as part of the PR process. That does not mean they can't apply for a restricted work permit separately from the PR process, but normally that process takes at least as long as the PR process. And that's about where the basics end.
Yours will be a complicated application, because of the fact that your fiance has a criminal record. There is no getting around the fact that they will take time to assess whether or not this offence makes him inadmissible to Canada. If they decide it does, the application will be refused - so filing inland would be a very bad idea. You have no option to appeal a refusal if you file inland - but with the outland process you can appeal a refusal and maybe get the case allowed on humanitarian and compassionate grounds. But be prepared - the appeal process takes a long time, at least a year, maybe two, after the refusal is handed down. And it's expensive to hire an immigration attorney to represent you.
I'm sure everybody will agree with me that your first and absolutely most important move should be to arrange to consult with a reputable immigration attorney who has experience in dealing with criminal inadmissibility. You'll need some good advise about what you can expect to see happen - usually someone with a criminal record/arrest of any kind needs to apply for, and receive, a pardon ("rehabilitated status") before they're eligible to apply for permanent status . . . and there is a period of time that has to pass after satisfaction of all conditions of the sentencing before they're eligible to do that. Whether rehabilitated status is necessary, and how long before someone can apply, depends on the offence. It's impossible for any of us to give you any kind of definitive answer as to how your fiance's offence will be assessed, or how long it will take. I would suggest that you guys also familiarize yourselves with your options for him to sponsor you to the States - at least for the short term - before you make any decisions about him trying to come to Canada, even with a work permit. The most basic thing I know about someone sponsoring a partner to the States is that there is a minimum income/employment or asset requirement that he might not be able to satisfy if he was to come to Canada to wait out what could, at least for the immediate future, be a doomed PR application. So be familiar with those requirements and options, and talk with a Canadian immigration attorney to get an idea of the effect his charges will have on his being able to get permanent status in Canada, before you close any doors.
Always stay positive.
If you decide to have him sponsor you to the USA instead. From what I have researched on the US immigration site is that if your teens are under 18, he can sponsor them too.
Sorry for taking so long to reply guys. Thanks for the information. We have ironed out some details regarding his conviction and it turns out he won't be eligible for rehablitation status until 2012. This is solely because the Texas judicial system took almost two years to issue a court date. The arrest was in 2005 and the court date and sentencing was 2007. It would be nice if we could argue the point to immigration that this waiting time was not his fault.
Since my initial post he has found out that he has further charges from 2005 resulting in unpaid fines and local warrants because he didn't know about them. All of these things are not convictable criminal activity in Canada, to my knowledge. Such as failure to appear for unpaid fines or court costs that he wasn't aware he had. One is possession of <2oz marijuana (actual possession was trace amount, so would not be indictable here); which he served about 3mths for and the other is "hot check" or "theft by cheque" which is the same as an NSF cheque here. Even ONE is a criminal offence in Texas!! (??what the heck??)
If we had a lot of money I think the best bet would be to pay everything, and hire a lawyer to seal the records. I say this because my kids and I moving out of the country is an impossibility as their father would not give the permission to do so.
What's even worse is the fact that with the American economy the way it is my fiance has been laid off and is having trouble finding more work (because of the warrants I would imagine) and is still unable to pay these fines. So...he faces having to go to jail to "serve" them in which case he has a new conviction and another almost 6 years before he can apply to Canada Immigration for rehabilitation status.
Anyone else feel my frustration???
Adding to that is the fact that we would like to have a child; I'm 38 and reallly can't wait 6 more years nor would I want him to miss out on pregnancy, child birth, and raising his child simply because he's inadmissible thanks to the unjust rigors that is the Texas judicial system.
At this point, I really do not know what to do. It's cruel to think a couple would have to write off a relationship simply because they live in different countries
There have been more than one member here who have dealt with having a child while their husbands aren't allowed in the country. Immigration really doesn't care about that. To be honest, I think they almost like it as a show of how powerful they are.
The fact that he already has warrants could be a problem, he should really address those first - any police check he gets (state/FBI) will most likely show open warrants which Canada will probably want resolved before they even think about letting him in
As far as his crimes in the US - what he "would" get time for in Canada doesn't matter. My crime, that I was convicted of, was having a BAC over .05 & under the legal limit - it's still considered impaired driving in Canada (and a federal charge) and the possible punishment is what counts, not what would be realistic.
As RobsLuv suggested, take everything to a reputable Canadian Immigration
lawyer. Best bet is to have him get copies of his TX police check (and any other states he's lived in) along with copies of court documents showing the disposition, etc and a copy of his FBI check and take ALL of that to a lawyer & see what he/she has to say.
What immigration does is find the comparable crime in the Criminal Code of Canada and they equate it. What he was charged with may, or may not even be federal. Those are the ones you have to worry about.
He really needs to take care of his warrants though.
There is a lady on here that's been married to a US citizen for something like 7 years and they've been living apart because of DWIs.
It's not that CIC doesn't care that they are keeping people apart, those are the rules and the only way around those rules is really to be denied, and file an appeal. The IO is bound by the law. The appeal process has discretion there, the IO really doesn't.
mymagicksoul Wrote:Sorry for taking so long to reply guys. Thanks for the information. We have ironed out some details regarding his conviction and it turns out he won't be eligible for rehablitation status until 2012. This is solely because the Texas judicial system took almost two years to issue a court date. The arrest was in 2005 and the court date and sentencing was 2007. It would be nice if we could argue the point to immigration that this waiting time was not his fault.
Since my initial post he has found out that he has further charges from 2005 resulting in unpaid fines and local warrants because he didn't know about them. All of these things are not convictable criminal activity in Canada, to my knowledge. Such as failure to appear for unpaid fines or court costs that he wasn't aware he had. One is possession of <2oz marijuana (actual possession was trace amount, so would not be indictable here); which he served about 3mths for and the other is "hot check" or "theft by cheque" which is the same as an NSF cheque here. Even ONE is a criminal offence in Texas!! (??what the heck??)
If we had a lot of money I think the best bet would be to pay everything, and hire a lawyer to seal the records. I say this because my kids and I moving out of the country is an impossibility as their father would not give the permission to do so.
What's even worse is the fact that with the American economy the way it is my fiance has been laid off and is having trouble finding more work (because of the warrants I would imagine) and is still unable to pay these fines. So...he faces having to go to jail to "serve" them in which case he has a new conviction and another almost 6 years before he can apply to Canada Immigration for rehabilitation status.
Anyone else feel my frustration???
Adding to that is the fact that we would like to have a child; I'm 38 and reallly can't wait 6 more years nor would I want him to miss out on pregnancy, child birth, and raising his child simply because he's inadmissible thanks to the unjust rigors that is the Texas judicial system.
At this point, I really do not know what to do. It's cruel to think a couple would have to write off a relationship simply because they live in different countries
His conviction is not federal, here or there. Everything is misdemeanor and summary here (if he would have gotten anything at all)
I'll see if a lawyer here can get all of this information. I have paid for some "background" checks online and warrants don't show up on them. Not even with the Department of Public Safety in Texas.
Criminal inadmissibility is complicated. What matters isn't how it was convicted in the USA, but how it could - in theory - be convicted in Canada. They take the offence, determine the equivalent in Canada, and find the worst-case sentence. So if the equivalent offence has a worst-case sentence of 6 years in prison, convicted under indictment, that's what matters, even if it was convicted summarily with nothing more than a fine.
Thank you Mathew,
From all of the research and comparison's I have done; the offense is not indictable in Canada or even holds jail time as punishment. It's "pay the fine or do the time" though like any other fine.
This is all rather confusing and from the sounds of it it's going to turn out to be fairly expensive to get cleared up.