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MORE COMMON PITFALLS IN IMMIGRATION APPLICATIONS
The purpose of this section is to give the reader further information on the immigration process and more areas where a prospective applicant can fall into a trap. Further detailed information can be obtained by contacting Marvin Moses Law Office.
R117-9d: Non-disclosure of dependents:
A common problem that arrives at our office is the situation of an applicant who omitted intentionally or inadvertently, listing a child as a dependent. Often it is a result of bad advice and/or ignorance of the law. A dependent that is omitted and not medically examined at the time the Applicant is processed for immigration will result in the dependent being barred in the future from being sponsored by the applicant.
A common example is the case of an applicant being sponsored by a spouse. A child of the dependent is not listed at the time of the sponsorship. Later, the Applicant after immigrating to Canada seeks to bring the child to Canada. The application is refused under R117-9d, non-disclosure of a dependent.
Another common example is in the Live-in Caregiver Category (LICG) where a caregiver, fearing that the application as a LICG will be refused if immigration knows that the LICG is married and/or has children, will not disclose the spouse and children on the LICG application. Later, after the LICG has met the conditions for landing, the LICG applies for landing and seeks at that time to add the dependent spouse and/or children. In such cases, the spouse and/or children are refused typically refused under R117-9d, non-disclosure of a dependent.
A further common example is the situation of an applicant who is being sponsored and does not mention a prior relationship, specifically a prior spouse or common law partner and the children from such a relationship. Later when the applicant seeks to bring the children, the application is typically refused under R117-9d, non-disclosure of a dependent.
Also common is the situation of an applicant who applies for immigration by his/her –self without mentioning that the applicant is married and/or in a common law relationship. Later, after landing, the applicant seeks to sponsor their spouse or common law partner. Again, the case is often refused under R117-9d, non-disclosure of a dependent.
Another common situation is the case where a child is born during the application process or an applicant marries during the process. In either case, the applicant fails to inform immigration of the new situation and as a result, when the applicant, after receiving permanent residence, later tries to sponsor the dependent spouse or recently born child, the case is again often refused under R117-9d, non-disclosure of a dependent.
There are a myriad of examples of cases where dependents are not disclosed, either because the applicant had bad advice, lacked advice, and/or deliberately made a decision to omit mention of the dependent.
Fortunately, there are ways in many cases to resolve these omissions. The process can be lengthy and complex and sometimes costly. However, if the applicant seeks to re-unite with their dependent or dependents, there may be no choice. This could all be avoided with proper advice received at the start before the applicant makes an immigration application.
Misrepresentation:
Another common problem that arrives at our office is the situation of an applicant, or a permanent resident, who is reported by immigration for making a misrepresentation. The misrepresentation may be intentional or inadvertent. The result is the same. The applicant may be found inadmissible and refused immigration and/or the permanent resident may be put in a position of trying to prevent immigration from removing their permanent resident status.
Permanent Resident Examples:
A common example arises where a permanent resident applying for citizenship, or for a renewal of their Permanent Resident Card, misrepresents the time the permanent resident has spent in Canada.
A further common situation arises from a R117-9d non-disclosure of dependent, as discussed above, where in the applicant, now a sponsor of the non-disclosed dependent, is determined to have made a misrepresentation by not disclosing their dependent at the time that the applicant (now sponsor) applied for immigration. Therefore, not only is the immigration application to bring the dependent refused under R117-9d for non-disclosure of a dependent, but the permanent resident is also found to have made a misrepresentation.
As a result of the misrepresentation, a permanent resident may be called for an interview with an officer or asked for written submissions to be made, explaining why permanent residence should not be revoked as a result of the misrepresentation. Where the officer’s report is negative and an A44 Report issued, the result is the need for the permanent resident to attend an inadmissibility hearing and possibility an appeal of the inadmissibility hearing determination that the permanent resident is inadmissible for having made the misrepresentation. Where the appeal is successful, the permanent resident would often receive a “Stay”, that is, a hold, on removal, for a period of time, after which, if the permanent resident complies with all conditions set by the court at the appeal, the permanent resident would no longer be at risk of losing status and being removed from Canada.
A further common situation arises where a permanent resident who was sponsored to Canada as a spouse of a permanent resident or Canadian, then separates, divorces and then sponsors a new spouse or family member. In cases where this permanent resident, (who was sponsored to Canada as a spouse) separates from the sponsor soon after arrival, the permanent resident is often the target of a misrepresentation investigation when they later sponsor a spouse or family member. Often the separation soon after arrival is the result of a break down in the relationship as a result of abuse or conflicts in the personalities of the sponsor and the permanent resident that was not apparent until after they started living together. However, Immigration does not know this, and the result is a misrepresentation investigation where it is alleged by Immigration that the permanent resident never intended to live as a spouse of the sponsor and was therefore not in a genuine marriage at the time the permanent resident received their landing papers. In cases where this misrepresentation investigation occurs, the new sponsorship started by the permanent resident is put on hold until the investigation is resolved. An investigation can often take two years resulting in lengthy delays in the processing of the new sponsorship. Where the misrepresentation investigation findings result in a referral to an admissibility hearing for the permanent resident, further lengthy delays occur in the new sponsorship. In some cases, the permanent resident arranges a hasty divorce that states the separation date as a date even before landing thinking that Immigration will not find out; however, when the new sponsorship is commenced, Immigration usually does find out, also leading to the allegation that the permanent resident was separated from the sponsor prior receiving permanent residence in Canada. In some cases, the permanent resident is concurrently applying for citizenship during the new sponsorship and where misrepresentation allegations arise, the citizenship application would also be put on hold pending the outcome of the misrepresentation allegations. In cases where the permanent resident first obtains citizenship and then sponsors a new spouse (after a quick separation from their original spouse or a hasty arranged divorce where the separation date is a date preceding receipt of permanent residence, the permanent resident is still not safe; under the Immigration and Refugee Protection Act (IRPA), the permanent resident, even if now a citizen, can face fraud charges under the Criminal Code of Canada. A provision in IRPA allows for such charges to be laid. In addition, Immigration can still delay and sometimes refuse the new sponsorship.
In summary, fortunately, in many cases, through proper presentation and submission by an experienced lawyer, the misrepresentation allegations can be over come and the case successfully resolved. To avoid these above mentioned pitfalls, it is imperative that persons seeking immigration and/or who have been sponsored as a spouse to Canada, and who now seek to divorce their sponsor and then maybe later sponsor a new spouse, first obtain proper legal advise from an experienced lawyer.
Visa / Immigration Applicant Examples:
In the case where the person found to have made a misrepresentation is someone who is not yet a permanent resident but has made an application for permanent residence, not only is the immigration application refused but the person may also face a future bar on applying for immigration.
A common example, is the situation where an immigration applicant presents a false work experience letter or false Canadian company job offer, or where the immigration applicant omits to mention a prior relationship, whether a prior spouse or common law partner.
A further common example is where the immigration applicant fails to disclose that they have been refused a prior visa and/or immigration application, or have been previously ordered to leave and/or removed from Canada.
Another common example is the situation where the immigration applicant fails to disclose a serious medical condition, which is known to the applicant.
As in the case of non-disclosure of dependents, in the case of misrepresentation, there are a myriad of examples of cases where misrepresentation may arise, either because the applicant had bad advice, lacked advice, and/or deliberately made a decision to misrepresent and/or omit relevant facts and details that should have been mentioned.
Fortunately, there are ways in many cases to resolve these omissions and/or misrepresentations. The process can be lengthy and complex and sometimes costly. However, if the prospective immigrant seeks to be able to apply for a visa and/or immigration in the future, or if the permanent resident seeks to retain their permanent residence, there may be no choice. This could all be avoided with proper advice received at the start before the applicant makes an immigration application and/or before a permanent resident applies to bring someone to Canada.
Failure to Disclose Representative:
Recently, Immigration has begun refusing cases where it is suspected that a representative has been used to assist in the completion of the application, but where the representative is not disclosed. Immigration through this approach is targeting so-called Ghost Consultants, consultants who are not licensed. These unlicensed consultants avoid properly putting their contact information on an applicant’s application. Unfortunately, it is the applicant who suffers as a result and it is the applicant that receives the refusal. Such refusals are often on the basis of misrepresentation. It cannot be emphasized enough that if an applicant decides to use a representative, it is the applicant’s responsibility to ensure that the representative is licensed. The licensing of a lawyer can be easily verified; the use of a lawyer from the start would prevent immigration from refusing the application that immigration suspects was completed by a non-licensed representative.
Final Note:
Obtaining legal advice is very important, especially in complicated situations, to better lay the foundation for a successful application, especially in the current environment where Immigration authorities have become stricter in applying the temporary visa and immigration application criteria rules and regulations. Further, even when applications seem to be straightforward, an experienced immigration lawyer may still find problematic areas that need to be addressed from the outset to avoid later complications. As always, the persons making immigration applications either for themselves or to bring someone to Canada, should seek proper and honest legal advice in order that the rights of the immigrant applicant and/or permanent resident are not jeopardized.
The immigration system is constantly changing, and new rules and policies are often being formulated and implemented.
Protect yourself. Contact Marvin Moses Law Office now! Obtain competent, experienced, and honest advice!
Applicants must know what they face and a skilled professional is the one best to be able to guide them along the road to successful immigration to Canada. The use of a skilled lawyer does not guarantee success; no one can make such a guarantee and be telling the applicant the truth. However, the use of a lawyer may help the applicant avoid some of the above-mentioned pitfalls and others that may appear along the way.
For further information please contact one of us at Marvin Moses Law Office.
(Since the issues and matters in reality are quite complex, it is recommended that legal or other appropriate professional advice should be sought before acting upon any of the information contained therein. Although every reasonable effort has been made to ensure the accuracy of the information contained in this article, no individual or organization involved in either the preparation or distribution of this article accepts any contractual, tortious, or any other form of liability for its contents or for any consequences arising from its use.)