Restoration of Status
One of the least onerous remedies for loss of status is for those of you who are eligible to have their visitor, student, or worker status restored. If you are a student, worker or visitor, and have lost your temporary resident status as a result of failing to comply with a condition imposed, Section R182 applies to you if within the 90 days after losing temporary resident status, you successfully submit an application to restore legal status. Keep in mind that if you apply within the 90 day window you do NOT have implied status and you must stop working or studying. If your application is approved, you’re good to go and can start work or study again. However, if a refusal is made by an officer to restore status, that letter usually makes an explicit order for you to depart immediately from Canada voluntarily. This order becomes a deportation order after 30 days.
Of interest, a 2018 Federal Court decision provides some guidance on the argument that the 90 days to restore status should start from the date the refusal letter is communicated and received by the applicant.
Access to Information and Privacy (ATIP)
Troubling situations will require a detailed discussion and a specialized plan of rectification. Every situation is unique, though here some starting points where further conversation and investigation might begin:
- Did you or IRCC make a mistake in an application for non-immigrant or immigrant status?
- Are you living inside or outside Canada?
- Have you been charged with an offense?
- Have you been convicted of a minor or serious offense?
- What are your particular circumstances, as they will determine the measures (if any) for relief?
- What if you’ve forgotten some of your immigration history?
Your proceedings will vary based on how you answer questions like the ones above and others. We understand your fear of being discovered out-of-status due to the potential for serious and negative consequences. The prospect of a removal order, exclusion, deportation and ban from Canada is intimidating for sure.
To fully comprehend your background history, we strongly recommend that your immigration expert apply to receive access to your immigration record, including the officer notes on file. It is a formal application process (an ATIP) to access the information history stored by IRCC and the CBSA.
Once information is received, you (and your representation) will be able to read the file, including any officer notes relating to your history. Based on these findings, you will be advised whether or not there exist administrative remedies applicable to you (specifically), including but not limited to appeal to a quasi-judicial tribunal or judicial review to the Federal Court. ATIP applications are extremely important and should not be discounted as part of a detailed assessment. It could uncover points that should be addressed that are news to you.
Illegals in a Third Country
Undocumented foreign nationals who are residing illegally in a third country (meaning not Canada and not your country of citizenship), are eligible to apply for permanent residence. You are eligible to apply for permanent residence in any of the immigrant classes. The approval will depend on you meeting the requirements of the particular permanent resident class in which you apply for consideration.
As an example, you might apply under one of the Federal Skilled Worker classes or one of the Provincial, Territory, or Regional Programs. If you have the minimum required skilled foreign work experience over the last 10 meet other selection requirements for permanent residence. Understand that at the federal skilled worker programs selection is decided on the basis of several factors, such as: language proficiency, age, education, work experience, adaptability and minimum funds required to settle in Canada. A job offer is not mandatory when applicants meet the minimum score of points without it. Your health condition and the result of a criminal record will influence whether or not you be approved.
We encourage those who are in the US or elsewhere without legal status to book a with us to learn about available options to become legal. Elda receives large numbers of calls from individuals who have been living with illegal status for decades – some without legal status since childhood. Finding a way to resolve illegal status is the only way to get unstuck and without rights. Without legal status you can’t plan; you are forced to hide your identity; and you are living a life of forever looking over your shoulder.
You main have a lot to gain by finding out if you have viable options to become legal and live freely in Canada.
Breach of the 730 Day Residency Obligation
There is reason to hope. Elda has spoken with many callers who are surprised to learn that they are still permanent residents of Canada even with an expired Permanent Resident Card. Except for the exemptions, there is a 730-day physical presence requirement to be inside Canada in every period; however, we do NOT lose our status when the permanent resident card expires, even when you have been living outside Canada for many years. Callers are surprised to learn that they are still permanent residents, despite the breach until a final decision is rendered and appeal rights are spent.
Decision-makers at IRCC and the Immigration Appeal Division have the authority to assess your case and to determine status based on legitimate humanitarian and compassionate grounds. Elda has found valid reasons to argue on behalf of clients, some of whom had no physical presence in Canada for over 11 years. Keep in mind that your story does not have to end with “I’m in Trouble”.
