Question:
am applying for RRP from within
USA and got the following letter
from the Canadian embassy:
Dear Sir,
This refers to your application
for returning resident permit. Pursuant
to Paragraph 9(3) of the Immigration
Act, in order to continue the processing
of your application, we require
the following: PROOF OF YOUR CURRENT
STATUS IN USA; PROOF OF TIES TO
USA, IE, PROPERTY, BANK ACCOUNTS.
You have 30 DAYS time from the date
of this letter to submit this documentation.
If you do not submit this documentation
within that time period, it would
be assumed that you are no longer
interested in pursuing your application
and your application could be refused.
My questions:
1-What does the Paragraph 9(3) of
the Immigration Act says? 2-Why
are they asking for proof of current
status in USA and proof of ties
to USA? 3-Currently I have J-1 status
in USA (post doc doing scientific
research) but starting from february
next year I will have H1B visa which
is being extended to continue my
research for some time.
What would
be the difference of one status
or the other in regard to the application
for RRP?. should I send proof of
my current J-1 status and an official
letter stating that an H1B application
has been filed? To make understandable
for you. In the letter I sent to
the embassy in the RRP application
I explained my situation, In short:
I have to finish the research I
started, I have to master some new
technology because in this way it
will be much better for me to fulfill
my career goals and to settle in
Canada in the future .Instead of
throwing everything now and run
into Canada.
Answer:
I was told (by an immigration professional)
that studying abroad is OK for getting
RRP but working is very suspicious,
unless for a Canadian employer.
In general, RRPs are not given to
H1B workers. As for the necessity
to obtain training after graduation,
you may as well obtain it in Canada
so it is probably their opinion
that there is no urgency for you
to remain in US after school.
As I understand,
the consulate now tries to establish
if your status in US is more than
strictly temporary, if your ties
to US are stronger than certain
acceptable level and, consequently,
if you are more established in US
that in Canada, in which case it
may be viewed as if you are going
to abandon Canada in favor of US.
Your course of action now should
be to demonstrate that your status
in US is temporary in nature (J1
is good for this, H1 is not so good)
and that your life style is oriented
toward Canada rather than toward
US.
For a comprehensive
discussion, see "Maintenance of
Canadian Permanent Residence" http://americanlaw.com/cdnmaintres.html
"9 (3) Every person shall answer
truthfully all questions put to
that person by a visa officer and
shall produce such documentation
as may be required by the visa officer
for the purposes of establishing
that his admission would not be
contrary to this Act or the regulations."
The visa office is wrong as 9(3)
does not apply to an application
for an RRP in that this does not
deal with "admission" which "means
entry or landing" and those terms
are defined under the Immigration
Act at s.2(1): "entry" means lawful
permission to come into Canada as
a visitor; "landing" means lawful
permission to establish permanent
residence in Canada; You are not
seeking "admission" so 9(3) is not
applicable to you.
2-Why
are they asking for proof of current
status in USA and proof of ties
to USA? They are attempting
to have you provide evidence that
you have abandoned your status in
canada and the yare building a case
file with documentation which can
be used as evidence against you
when you try to re-enter Canada.
3-Currently
I have J-1 status in USA (postdoc
doing scientific research) but starting
from february next year I will have
H1B visa which is being extended
to continue my research for some
time. What would be the difference
of one status or the other in regard
to the application for RRP?. should
I send proof of my current J-1 status
and an official letter stating that
an H1B application has been filed?
To make understandable
for you. In the letter I sent to
the embassy in the RRP application
I explained my situation, In short:
I have to >finish the research I
started, I have to master some new
technology >because in this way
it will be much better for me to
fulfill my career goals and to settle
in Canada in the future .Instead
of throwing everything now and run
into Canada. All most visa officers
are interested in doing is refusing
RRP's and building evidence against
applicants. It is one of the reasons
that I generally recommend to people
never to apply for RRP's (there
are some exceptions).
I prefer to
rely upon the law and let the matter
be determined by an Immigration
Adjudicator if refused entry as
the Adjudicator unlike the visa
officer is impartial and you will
get a full hearing. I have set out
the law and policy on the abandonment
of resident status. The critical
factor in determining whether or
not a person has lost permanent
resident status ("PR") is the person's
intention. It depends upon your
intentions when you left Canada
and while you remained outside.
If you intended to abandon Canada
as your place of permanent residence,
then you have lost your PR but if
your intention was not to abandon,
then you do not lose it. As you
can appreciate intention can be
a difficult thing for you to prove
or quantify.
On the other
hand it is also difficult for Canada
Immigration to prove you had the
intention to abandon your PR if
you have knowledge of the law, regulations,
polices. procedures and the factors
particular to your circumstances.
The remarks which follow are general
in nature. It is best to consult
with someone experienced in the
area who can advise in regards to
you specific facts and circumstances
and prepare you for your return.
Your PR status is a valuable commodity
and you should ensure that you take
all possible steps allowed at law
to preserve your rights.
The Immigration
Act states that any person who remains
outside Canada for 183 days or more
in any 12 month period (it can be
cumulative) is deemed to have abandoned
permanent residence. In practical
terms this means that before the
183 day mark is reached Canada Immigration
has the burden of proving that you
intended to abandon Canada (i.e.,
50% or more likely you intended
to abandon) and after 183 days that
you bear the burden of proving that
you did not. This would only be
real issue where the evidence was
evenly balanced so the 183 day "requirement"
is more of a mirage than a requirement.
Many Immigration Officers and Visa
Officers do not seem to understand
the difference between this deeming
provision and a requirement or do
not want to preferring to perpetuate
this myth of a six month residency
requirement.
An Immigration
Officer examining you on return
to Canada can only make a final
determination in your favor and
grant re-admission as a Returning
Resident. If the examining officer
is of the opinion that you did abandon
Canada and you insist that you are
a Returning Resident, he can only
make a report on you, he cannot
determine that you have lost your
PR status. An Immigration Officer
in attempting to assess your intention
upon your return to Canada would
look at continuing attachment to
Canada which could include such
things as: 1. Your family and other
ties to Canada 2. Maintaining a
Canadian bank account, club/association
memberships, etc. 3. If you owned
or leased a residence - did you
sublet the premises for a period
of time and perhaps include a provision
of resuming residence by giving
the sublease 3 months notice of
your return to Canada
4. The nature
of your absence - have you have
assumed a temporary rather than
permanent status in another country;
was the job or course of study taken
to enhance your job qualifications
or to gain relevant North American
work experience which would be useful
in future employment in Canada?
5. Did you
pay Canadian income tax? There are
many other indices of intention,
but I'm sure that you get the idea.
The key is your intention. Again
these are generalized comments and
may be personally applicable to
your circumstances. You then have
the right to put your case before
an Immigration judge (Adjudicator)
at an Inquiry (a type of trial with
most legal safeguards including
right to counsel). Most Adjudicators
in the past have been extremely
wary of removing a persons status
as as Permanent Resident while many
Immigration Officers and Visa Officers
seem to jump to this conclusion
quite readily. Very few cases are
ever lost at Inquiry if there has
been adequate preparation, proper
representation and presentation
of supporting evidence. Even if
you are not successful at the Inquiry,
you have a right of appeal to the
Immigration Appeal Division (IAD)
of the Immigration and Refugee Board
of Canada (IRB). This is a complete
rehearing of your case, again with
legal safeguards. Again the critical
factor in this scenario is the person's
intention.
This is not
unusual as many immigrants return
home to complete prior academic
or occupational commitments or to
dispose of assets in the home country.
In fact most Consulates caution
people in their initial correspondence
to refrain from making any move
to dispose of assets or leave employment
until the immigrant visa has been
issued. Where there is only a short
visa validity period, people often
are unable to dispose of assets
etc. before landing. In the event
that the IAD rules against you there
is an opportunity for judicial review
in the Federal Court of Canada.
Refusal of Returning Resident Permits
is becoming an increasingly common
problem. Visa officers and immigration
officers are ignoring the person's
intention.
The Immigration
Manual states that (t)he question
of establishing a physical residences
and physically remaining and working
in Canada should be subordinate
to the person's intention." I have
generally advised people against
applying for the RRP except in the
strongest cases as you are simply
given enforcement oriented visa
officers and immigration officers
the chance to refuse your application
with little or no chance of being
able to challenge such a decision.
In my view many of these refusals
are improper. As they are decisions
within the discretion of the officer,
it is unlikely that judicial review
in the Federal Court would be successful.
The reason for this is that the
Federal Court review is not a true
appeal but rather is limited to
determining if the officer came
to a conclusion which is wrong in
law or totally unsupportable based
on the evidence before the officer.
Since the decision involves a person's
intention it will be almost impossible
to categorically determine that
the decision was wrong. Simply being
refused the RRP does not mean that
you have lost your status
. Ultimately
only an Immigration Adjudicator
can determine if you have lost your
PR status and you have a full appeal
and re-hearing before the Immigration
Appeal Division of the Immigration
and Refugee Board with final judicial
review in the Federal Court of Canada.
Depending upon individual circumstances,
there are various steps and strategies
which may be available even where
an RRP has already been refused.
You should consider seeking professional
assistance for a review of your
circumstances and guidance on how
to proceed.
