Can my husband sponsor me? - News - Jamaica Gleaner - Tuesday | February 14, 2012

Can my husband sponsor me? - News - Jamaica Gleaner - Tuesday | February 14, 2012

Dear Miss Powell,

I had a Canadian visitor's visa  in the 1990's and I overstayed, but then returned to Jamaica. In December, I got married to a Canadian citizen here in Jamaica. Can he now sponsor me? Or would there be a problem?

K.C.

Dear K.C.,

Congratulations on your recent marriage. Generally speaking, as long as the relationship between you and your husband is genuine and not entered into primarily for immigration purposes, your husband can apply as your sponsor under the public policy relating to 'Spouse or Common  Law Partner in Canada Class'. Note, however, that there could be a few hurdles to cross and I will discuss these below.

First, you did not state whether you left voluntarily or under a deportation order. Anyone who has returned to their own country as a result of a deportation order is permanently barred from returning to Canada. The only way around this is by a written permission of the immigration authorities in Canada. This could be a highly technical procedure and it is best to see a lawyer to help you with the application to overcome your inadmissibility.

If you left voluntarily and you did not sign a deportation order when leaving, then the other issues we have to examine are the length of time that you overstayed and the reason for the overstay. More than likely, Citizenship and Immigration Canada (CIC) will decide whether or not you had a valid reason. Usually, a person travelling on a visitor's visa is given six months to remain in Canada, if not stated otherwise. If you remained for a few extra days due to the death or severe illness of a relative, weather, flight conditions or other reasons that you had absolutely no control over, then CIC may be inclined to pardon you.

Not many people are aware of this option, but CIC has made it clear that if someone is in Canada by virtue of a visitor`s visa and they wish to extend their stay, they should make an application for extension of time, before the expiry of the time granted. Usually, the application should be made 30 days before the expiry of the time. This would have been a better route to take, rather than overstaying.

Second, CIC will also evaluate whether you and your spouse meet all the other requirements for immigration. Your husband must be eligible to sponsor you and any dependent children you may have. He will need to provide documentary evidence that he is able to financially support you for a minimum of three years and that you will not need to apply for financial assistance. He will be required to submit an 'application to sponsor and undertaking' to be fully responsible for your basic needs. He will be required to show his last income tax returns and proof of assets. The proof required is less, if there are no dependent children involved. However, please note that he must not have defaulted on a court-ordered spousal or child support order; not declared bankruptcy and not released; not received government financial assistance for reasons other than a disability and not convicted for any serious crime within the last five years.

Once these hurdles have been crossed, you will need to successfully complete the criminal, security and health checks.

Generally speaking, a person who has overstayed in Canada under a visitor`s visa may be granted a permanent residence status, as long as they meet all requirements set by the CIC. If you have doubts about your ability to satisfy the requirements, then consult with an immigration lawyer and provide all the details about your situation. The good thing about your situation is that if you were to be denied, since you are making the application outside of Canada, you would have the right to appeal.

Deidre S. Powell is a lawyer, mediator and notary public who is a member of the Jamaican and Ontario, Canada, bars, with main office located in Ottawa, Ontario. Her areas of practice are in immigration, real estate, administration of estate and personal injury law. She is on the roster of mediators for Ottawa, Toronto and the Dispute Resolution Foundation of Jamaica. Email: info@deidrepowell.com