By: Kerry Molitor
Where to File a Spousal Sponsorship Application
Love strikes when you least expect it, and often sparks fly between people of different nationalities. Sometimes a couple will meet when one of them is in Canada as a visitor, an international student, a worker, or even without legal status. Other times, a Canadian citizen or permanent resident will meet someone special while they themselves are abroad for the same reasons.
If a couple wants to make a life together in Canada they must file a sponsorship application in one of three categories. The first category is for spouses who are legally married, the second category is for common-law spouses who are unmarried but have been living together in a marriage-like relationship for at least one year, and the third category is for conjugal partners who are unmarried and live in different countries due to circumstances beyond their control. The situation of conjugal partners is beyond the scope of this article, where we will be dealing with married and common-law spouses.
There are two ways to file a sponsorship for a spouse: “overseas” where the processing is done at a visa office outside Canada or “in-Canada” where processing is done from within Canada. There are several factors for and against each option.
The first consideration is the location of the sponsored spouse (the applicant). If the applicant is located outside Canada, they must have the sponsorship processed outside Canada. This can be done at the visa office responsible for the applicant’s country of citizenship or for a country where the applicant is physically present and has been admitted for at least one year.
If the applicant is inside Canada, the application can be processed either inside Canada or at the visa office responsible for the applicant’s country of citizenship. If the sponsorship is processed inside Canada, the applicant generally must stay in Canada until he or she becomes a permanent resident. Short absences from Canada are permitted in certain circumstances, but the applicant must be prepared to be away from their home country for the duration of processing.
An overseas applicant can theoretically come and go from Canada during processing if they are visa-exempt or have a valid Canadian visa, but they must understand that immigration officers have the final say about who can and cannot enter Canada. Officers are often unpredictable and the end result could be an applicant with a valid visa being barred from Canada until the sponsorship is decided.
Processing times vary between overseas and in-Canada applications, and from visa office to visa office. In-Canada processing is currently taking about two years and overseas processing is considerably faster, though the exact speed of each visa office depends on many factors.
A major benefit to in-Canada processing is that an applicant with valid Canadian status can apply for an open work permit when the sponsorship is submitted. Approximately four months later, the applicant will receive an open work permit that allows them to work in most occupations. This benefit does not exist for applicants in Canada who opt to have their application processed overseas, even if they continue to live in Canada.
Another difference between the two types of applications is what happens if the sponsorship is refused. A sponsor with an overseas application can appeal to the Immigration Appeal Division. If the appeal is dismissed, the sponsor can request a Judicial Review, which is a hearing at the Federal Court of Canada. In-Canada sponsorships cannot be appealed and must go straight to the Federal Court.
The decision about where to file a sponsorship application has wide reaching implications on both the sponsor and the applicant. A couple should thoroughly understand their options before submitting a sponsorship for an applicant who is living inside Canada because the wrong decision can separate them indefinitely.