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When do you really need an immigration lawyer?
If you’re a person who’s not very diligent with paperwork and isn’t going to take the time to go over each sentence, every document you’re including to make sure that the application is perfect, then it’s recommended that you get professional assistance. Unfortunately, the Canadian immigration system it’s a complex bureaucracy where thousands of applications are filed and processed each month. Very often, if you missed a signature, or didn’t fill out a section on a form, your application might get returned to you in it’s entirety, or it could be refused altogether. That can cause a lot of issues and delays in your professional and personal life, especially if you had specific plans to move or travel to Canada.
If you have already applied and have been denied, the safest and best thing to do to make sure that your application is on the right track is to consult with an immigration lawyer to determine whether your new application should be handled by an immigration expert.
In immigration law, rules and regulations are changing all the time. Combined with this is the complex administrative system by which immigration applications are processed.
For example, you might think that submitting five photos in your spousal sponsorship application are sufficient to demonstrate the genuineness of your relationship. However, as lawyers, we usually recommend that you submit at least 30 to 50 photos, in colour, with descriptions and dates. These little nuances make a big difference.
Or another example – you prepared your application, and you mailed it by regular mail to the immigration office. This is not recommended – immigration applications should always be submitted by registered mail or courier for you to have a tracking number if your application is lost or delayed.
You wouldn’t set your broken bones, would you? If you think you have a complex application that requires attention, consulting and maybe hiring an immigration lawyer is what you need!
Why having a licensed lawyer submit your application is in your best interests
1. Avoid and reduce long immigration delays caused by incomplete applications;
2. Ensure that you meet the necessary requirements to qualify under the right category;
3. Are asked the right questions to avoid any future complications or refusals (complicated immigration history, inadmissibility, criminality, misrepresentation issues);
4. Transfer the time-consuming task of completing, preparing and submitting the application onto a licensed professional.
The immigration lawyer:
1. Relies on past experiences with Citizenship and Immigration Canada to develop a robust and strategic application;
2. Ensures the required forms are complete and correct by reviewing in detail the accurate and pertinent information with you;
3. Reviews and refers to the most updated legislation and court decisions to ensure that your application meets the requirements of the current rules, regulations, and policies;
4. Collects additional supporting documentation relevant to your file and prepares a submission letter outlining the legal basis for your application, your background information, eligibility, admissibility and any exceptional circumstances.
Immigration rules, regulations, and policies are always changing, and an immigration lawyer can provide you with pertinent, up to date information as well as guide and assist you throughout your entire immigration process.
How to renew your permanent residence card if you are outside of Canada
I am a Permanent Resident of Canada, but I have mostly lived outside of Canada, What is Permanent Resident Card renewal process?
The renewal of your Permanent Resident Card will depend on the reasons why you were not present in Canada for at least 730 days in the five years preceding the application for renewal. If you were accompanying a Canadian spouse, common-law partner or parent outside Canada, if you were employed by a Canadian company overseas or if you were with a Permanent Resident of Canada employed by a Canadian company overseas, those days will be counted as spent in Canada. If you do not fit in any of these exceptions, you will need to ask the immigration officer to consider humanitarian and compassionate reasons as to why you were absent from Canada (i.e., medical condition of family member abroad. It is important that you clearly outline the reasons why you did not meet the residency requirement.
What is the difference between a Canadian Immigration Judicial Review & an Appeal?
In immigration law, the term Appeal is often used to describe both the “Appeal” and the “Judicial Review” process. However, these are two separate legal proceedings.
Appeal to the Immigration Appeal Division
An Appeal is a particular procedure initiated by the Immigration Appeal Division following individual refusals which allow for a full review of the decision and the decision-making process. The Immigration Appeal Division is one of three divisions of the Immigration and Refugee Board, Canada’s largest independent administrative tribunal.
Once you have filed an Appeal at the Immigration Appeal Division, you will wait to receive a hearing date.
An Appeal to the Immigration Appeal Division is proceeded by a Board Member (or Panel Member) which will review the decision of the immigration officer, visa officer or CBSA officer along with the updated documentation submitted by the parties. As the Immigration Appeal Division considers new evidence, this type of Appeal is called de novo. A Board Member will not, for example, grant or issue a Visa in an overseas case. Should the Board Member “allow” the appeal in such a case, the matter will be sent back to the visa post abroad for continued processing in line with the reasons for the request.
The following application/cases may be appealed to the Immigration Appeal Division:
At an Appeal, individuals may testify in person, through sworn statements as well as by phone conference. Parties may also submit documentation (called disclosure) before the hearing in support of the case.
If an Appeal is dismissed, you have 15 days from the date that you received the refusal to file an Application for Leave and for Judicial Review at the Federal Court of Canada to have the decision reviewed.
Judicial Review at the Federal Court of Canada
The Federal Court is Canada’s national court which hears and decides legal disputes arising in the federal domain. Immigration matters are dealt with as Applications for Judicial Review, which is narrower in scope than a full appeal. The Federal Court will only overturn in limited circumstances.
There is a 2 step process to have your matter heard at the Federal Court.
1. You must first file an Application for Leave and Judicial Review – this means that you are requesting permission to a Federal Court Judge to have your matter reviewed within a Judicial Review proceeding;
2. Should this permission be given (called “leave granted”), the Federal Court will then schedule a date for the Judicial Review hearing.
Just like the Immigration Appeal Division, a Federal Court Judge will not grant, issue or approve a Visa or application. The Federal Court will determine whether the decision of an immigration officer or a Board Member violated proper procedure or was reasonable or unreasonable. If the decision is determined to be unreasonable, the matter will be sent back for re-determination by a different officer or Board Member.
Any decision by a federal decision-maker can be judicially reviewed unless there is a first right of appeal. The following refusals can be directly judicially reviewed by the Federal Court of Canada:
Federal Skilled Worker
Canadian Experience Class
Provincial Nominee Program
Temporary Resident Visa
Humanitarian and Compassionate
Pre-Removal Risk Assessment
Request for Deferral
Spousal Sponsorship Appeal
Family Class Sponsorship Appeal
Residency Obligation Appeal
Removal Order Appeal
Refugee Claim or Claim for Protection
During a Federal Court Judicial Review hearing, the individual involved in the matter may not testify. The Federal Court will only rely on documentation available to the immigration officer or to the Board Member at the time the decision was made. Your immigration lawyer will submit argumentation and case law and the opposing party, the lawyer representing Citizenship and Immigration Canada, will do the same. The lawyers will argue the case in person before a Federal Court Judge who will make the final decision.
Do you have a question about this topic? Send us your question, and we will respond to you shortly.
Why should I consult with a Canadian Immigration Lawyer?
To determine the best solution and strategy for your immigration matter, we must conduct a consultation with you. During a meeting, an immigration lawyer will ask you specific questions on your immigration issue as well as review your documentation. The consultation process is entirely confidential.
It is important to address all relevant issues during the meeting to allow the immigration lawyer to have a complete understanding and knowledge of your entire situation to avoid surprises down the road in your immigration file.
Once the immigration lawyer has obtained all the information from you, you will be provided with legal advice. The immigration lawyer will also be able to give approximate timelines as well as possible outcomes based on your particular case.
Should you chose to retain the services of the immigration lawyer, you will be provided with a Retainer Agreement which will outline the working relationship between you and the immigration attorney. Once you have retained the services, you will be provided with instructions and a detailed list of documents needed to begin work on your file.
Once we have obtained the documentation, we will:
• Review your documents and advise you if we require further information;
• Review and complete all the required forms;
• Ensure we have prepared a robust and qualifying application;
• Make a submission letter (cover letter) which will outline the facts and legal background of your case;
• Submit your completed application to the appropriate Immigration office;
• Follow up on the processing of your application by regularly contacting immigration on your behalf as your representative;
• Supervise and handle your application until finalization.
Although immigration applications may at times seem simple to prepare, having a lawyer specializing in immigration on board will prevent potentials refusals, delays and complications. Immigration applications must be made meticulously and with care as not doing so will result in an application, being returned or refused. To deal with a refusal, re-applications, appeals or judicial reviews will be necessary, which can further delay the application for years.
Specialized immigration lawyers have submitted hundreds of applications and have a good understanding of immigration processes, policies, rules, and regulations. An immigration lawyer will assist you in navigating through the complex immigration system and help you in obtaining positive results.
Why do I have to do a residency questionnaire after already applying for Canadian citizenship?
There are some reasons why you would receive this residency questionnaire. Several citizenship offices are conducting due diligence to ensure that applicants have been truthful in their citizenship applications and meet the residency requirement. Citizenship asks application, to complete this questionnaire as well as provide documentation to demonstrate that you did reside in Canada for at least three years before applying for citizenship.
Citizenship applications can take a long time to process and even longer if you are asked to complete the questionnaire. It is important that you consult with an immigration lawyer to go over your residency history and ensure that you do not have any gaps or errors in your application.
How will PRRA regulatory changes affect our family?
We are a family from Guangdong, China, and we came to Canada to make refugee claims two years ago. In March 2012 our refugee claims were refused, and we have now been asked whether we would like to participate in the Assisted Voluntary Return and Reintegration Program. We were advised that we could decide whether to participate by August 30, and we would receive a payment from the government of $1,500 each. If we choose not to take the cash and stay in Canada, will we be arrested? Will we get to apply for a PRRA? How else can we remain in Canada?
Under the new regulations which came into force on June 29, 2012, refused refugee claimants can no longer make an application for a Pre-removal risk assessment, nor can they make an application on humanitarian and compassionate grounds, unless at least one year has passed since the refusal of the refugee claim. As your claim was only refused in March, you will have no other basis to apply to remain in Canada, and there is nothing to prevent your removal from Canada unless you do not have valid passports. If the immigration authorities can obtain passports for you and your family before March 2012, you will be removed from Canada without access to any further applications. If for some reason you are not removed by that date, you could initiate a humanitarian application, and you will also be entitled to a PRRA application before being removed. As there may be other issues you have not raised in your question, you should obtain specific legal advice from a lawyer.
What is the average wait time for a Canadian immigration application?
Quick answer: Probably longer than you think!
While you are probably aware that most Canadian immigration applications require an applicant to complete one or more forms, many immigration applications also require additional, supporting documents.
Sometimes these extra materials must be ordered from various government departments or agencies, and it can take several weeks or even months to receive those documents. Sometimes, the additional documents have to be obtained from friends, family, employers, health care professionals, educational institutions, or other organizations, and it may take time for these people and agencies to provide the documents to an applicant.
As you can see, the collection of documents can take months in some cases!
Applications submitted for processing that is ‘incomplete’ due to missing forms or documents might be returned without being processed, or even refused, and a re-application, if possible, will naturally add to the time it takes for an applicant to receive a final decision.
We advise all of our clients to allow plenty of time in advance for the completion of forms and the collection of documents. Our lawyers have extensive experience putting together strong, well supported and complete immigration applications in every type of immigration matter and would be happy to assist you with yours.
If you would like our assistance, kindly contact us to set up a consultation, and we would be glad to speak with you about the immigration process(es) that you might like to undertake.
Why was I asked to complete a Canadian Residency Questionnaire?
I have been a permanent resident for five years, and I applied for Canadian citizenship last year. I received a letter from the citizenship office requesting me to fill out a Residence Questionnaire and asking me to provide a lot of documents. I have been physically resident in Canada for almost four years when I applied, so I do not understand why I need to provide so many documents which are difficult to get. Is it possible they have made a mistake?
As a part of the government’s efforts to combat fraud, citizenship applications are being reviewed much more carefully than previously. In the past, many applicants stated that they were physically resident in Canada when, in fact, they were not. In order to ensure that all applicants are truthful in their applications, the new procedure requires applicants to substantiate physical residence with documents including taxation, banking, employment, education, medical and other records. You have not been singled out for this request, as all applicants must now satisfy officers that they have been physically resident or face refusal of their applications. It is certainly true that the new requirements will make the application process far more onerous for applicants. In addition, this will no doubt cause further delays as officers spend time reviewing the questionnaires and supporting documentation submitted by applicants.
Can I travel while my citizenship application is being processed?
I came to Canada as the dependent of my parents over five years ago. I started my citizenship application last year, and I heard that it would take at least another year or more to complete my citizenship application. I have been offered admission to Harvard and plan to commence studies there in September. Will this affect my citizenship application or my permanent residence status?
If you met the requirements for citizenship, including the residence requirement, at the time you submitted your application for citizenship, then your current departure from Canada will not affect your application. Under citizenship law, the relevant period is the four years immediately preceding your application. However, during the processing period, you are still a permanent resident, and you must ensure you continue to meet the residence requirement for permanent residence, which is two years in every five years. It is highly unlikely that your citizenship application would take so long as to cause a concern regarding your PR status. However, it would be wise always to keep track of your absences and seek advice if you become concerned.
My Permanent Resident Card expired and I am currently outside of Canada. How do I return to Canada?
If you are a Permanent Resident of Canada and your Permanent Resident Card is expired or you are waiting for the renewal of your Card, you will need to apply for a Travel Document from outside of Canada in order to re-enter Canada as a Resident. A Travel Document will be issued only if you have spent at least 1 day in Canada in the last 365 days.
If the Travel Document is refused, you may submit a Residency Obligation Appeal at the Immigration Appeal Division.
Are Permanent Residence Application Refusals refundable?
Generally speaking, no, there will not be a refund for a permanent residence application refusal. However, if you applied before the recent legislative changes, you may be entitled to a refund, depending on when you applied, and the reason for the refusal. If you applied before February 27, 2008, the date the major changes to the immigration law took effect, your application would be processed. You will not get a refund unless you choose to withdraw your application before it is processed. If you applied on or after February 27, 2008, and your application is not eligible for processing, you will get a full refund. If your application is available for processing, gets processed but is then refused, you will not get a refund.