Many individuals who have entered Canada as visitors, students, or workers and have allowed their visas to expire find themselves technically out of status. While the law suggests that they should leave Canada immediately, immigration policy has incorporated some flexibility into the system. Here, we will explore four options that can be utilized by individuals who are out of status in Canada to potentially prolong their stay or even obtain permanent residency.
- Restoration If a visa holder finds themselves out of status due to negligence (such as failing to file an extension application on time) or error (believing their legal representative filed the documents when they did not), there is a grace period of ninety days, known as the Restoration Period. During this period, individuals can submit an application to restore their status to the previously held visa. For example, someone with an expired study permit can apply for restoration to obtain a new study permit, provided they are still enrolled in school.Importantly, it is also possible to restore a visa into a different category. For instance, a person with a valid work permit who loses their job and sees their visa expire can still apply within ninety days to be restored as a student, given they have gained admission to a school and provide all the necessary documentation. The ninety-day grace period is non-negotiable, and no extensions are granted.
- Temporary Resident Permits What if an individual falls out of status, and the ninety-day grace period has passed? At this point, the best course of action is to leave Canada. However, as a last resort, the law allows for the submission of an application for a Temporary Resident Permit (TRP) if compelling reasons can be established for why they should be allowed to remain in Canada, and the risk to Canadians is minimal, among other factors.
- In-land Humanitarian and Compassionate Grounds A third option for individuals with no status in Canada is to apply to remain on Humanitarian and Compassionate (H&C) grounds. H&C applications are designed to overcome the requirement to apply for permanent residence from abroad, specific program criteria, or other inadmissibilities, such as criminality, financial issues, misrepresentation, or breaches of the Act.Factors considered when evaluating an H&C application include ties to Canada, the best interests of children, issues in the home country, family separation, violence, or health concerns. The evaluating officer will assess these factors against a test of unusual or undeserved hardship or disproportionate hardship.
- In-land Spousal Applications In addition to Restoration, H&C, and TRP applications, married or common-law spouses who are out of status in Canada can apply to be sponsored by a Canadian permanent resident or citizen. The Canadian government has implemented a special policy that waives the requirement to have valid temporary status in Canada when being sponsored by a spouse. However, it’s essential to note that being out of status is the only breach of the Act that is allowed. Other inadmissibilities, such as prior criminality or health issues, can still result in an application under this category being refused. Sometimes, H&C submissions are attached to an in-land spousal sponsorship application when other inadmissibilities are evident.While in-land spousal applications offer a unique opportunity for spouses out of status in Canada, they also come with certain limitations that must be carefully considered. These include forfeiting the right to appeal if the application is refused, longer processing times compared to overseas applications, and the requirement that the applicant remains in Canada until the application is finalized. For these reasons, it is crucial to weigh the pros and cons carefully and determine if an in-land spousal application is the best legal strategy. Individuals who have been living in Canada with no status for an extended period may typically meet the profile that justifies filing an in-land Spousal Sponsorship application.
