Out of Status in Canada
Individuals who have entered Canada as visitors, students or workers and who have allowed their visas to elapse are technically out of status. Although the law suggests that they should leave Canada immediately, immigration policy has incorporated a certain degree of flexibility into the system. Specifically, there are four options that can be tapped into which will allow some out of status individuals to prolong their stay or remain in Canada on a permanent basis.
If a visa holder finds themselves out of status, either through negligence (simply not filing an extension application in time) or through error (thinking your legal representative filed the documents but in fact never did), the immigration regime allows for a grace period of ninety days, called a Restoration Period, in which, as the name suggests, an application can be submitted to restore one’s status to the previously held visa. For example, a person on a study permit who is still in school but whose study permit has expired can file a Restoration application to obtain a new study permit.
It is also important to note that restoring a visa into a new category is also possible. For example, a person with a valid work permit loses their job and their visa expires. Within ninety days, then can still apply to be restored as a student, i.e. apply for a study permit, as long as they have obtained admission to a school and present all the required documentation.
The ninety day grace period is carved in stone and no extensions can be granted.
2. Temporary Resident Permits
What happens when a person falls out of status and the ninety days have elapsed? At this point, it is advisable for the individual to exit Canada. That said, as a last resort the law allows for the submission of an application for a Temporary Resident Permit if compelling reasons why they should be allowed to remain in Canada can be established and the risk to Canadians is minimal, among other factors. To learn more about Temporary Resident Permits, click here.
3. In-land Humanitarian and Compassionate Grounds
A third option for persons with no status in Canada is to apply to remain on Humanitarian and Compassionate grounds. H&C applications are designed to overcome the requirement to apply for permanent residence from abroad, to overcome specific program criteria or even to overcome other inadmissibilities such as criminality, financial lack, misrepresentation, or breach of the Act.
Factors that are considered when evaluating an H&C application include ties to Canada, the best interest of children, problems in the home country, separation from family, violence or health issues. The officer will assess these factors against a test of unusual or undeserved hardship or disproportionate hardship.
4. In-land Spousal Applications
In addition to Restoration, H&C and TRP applications, married or common-law spouses who are out of status in Canada can apply to be sponsored by a Canadian permanent resident or citizen. The government of Canada has implemented a special policy that waives the requirement to have valid temporary status in Canada when being sponsored by a spouse. It is important to note that being out of status is the only breach of the Act that is allowed. Other inadmissibilities such as prior criminality, health and other issues can still result in an application under this class being refused. Sometimes, H&C submissions are attached to an in-land spousal sponsorship application when other inadmissibilities are apparent.
Although in-land spousal applications extend a unique chance for spouses who are out of status in Canada, they also impose certain limitations that must be carefully considered. These include forfeiting the right to appeal should the application be refused, longer processing times than an oversea application, and the requirement that the applicant remain in Canada until the application is finalized. For these reasons it is important to carefully weigh whether an in-land spousal application is in fact the best legal strategy. A person who is married and has been living in Canada with no status for many years usually meets the profile that would justify filing in-land Spousal Sponsorship application.