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declare dual intent at personal interview for visitor visa?

declare dual intent at personal interview for visitor visa?

Old Jan 8th 2002, 10:23 pm
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VM
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I was requested to attend an interview pertaining to my visitor visa application and need advice regarding potentially declaring dual intent during this interview.

I applied for this visitor visa because I want to accompany my husband who is a landed immigrant in Canada when he relocates to Canada from the U.S..

Both my husband and I reside currently in the U.S. I am a Czech citizen on an F-1 visa, optional practical training (type of post-educational work permit) that expires on June 7, 2002. My husband is a Slovak citizen and is here on a J-1 visa and will get H-1 this month. His current returning resident permit to Canada expires February 28, 2002. He has filed for an extension for another 12 months (up to the 24 months which is the maximum allowed, the second 12 months being only under special circumstances). We are awaiting a decision on that. If it is granted, we wish to move to Canada in the summer.

We want to relocate to Canada and file for an immigration application for me. We understand that this application can also be filed for me while I am outside of Canada, but we are worried that I might not be granted a visitor visa for Canada once my husband files an immigration application for me and we will have to live apart.

I had placed an independent immigrant application last year, before we were married, and was denied because of insufficient work experience and educational background in intended profession (less than one year full-time experience; no degree in social work--the job on the list of occupations I chose that was closest to my background was social work).

In my multiple entry visitor visa application, I stated that I want to visit my husband for a period of time that will not exceed six months on any given visit. The application was accompanies by a letter of invitation from my husband, stating his intent to relocate to Canada in February (unless his application for an extension on his returning resident permit is approved, in which case he would be relocating to Canada at a later point). I declared in my application the fact that my immigration application had been denied.

I did all the research I could do via the internet on the issue of dual intent and paste all I found below for your convenience.

Based on the memorandum by CIC below, it is not clear to me whether I should say during the interview that (1) my husband intends to sponsor me for an immigration application from outside of Canada and I intend to retain my place of residence in the U.S. and only go on temporary visits to see him which I can do from the U.S. until my F-1 visa expires on June 7, 2002 and then from the Czech Republic;

or (2) that while my long-term intent is to immigrate, the purpose of this visitor visa is to visit my husband for a temporary period (but I worry they would press me on this issue and inquire about whether my husband plans to sponsor me for immigration once we arrive in Canada); or (3) that while the purpose of this visitor visa is for me to visit my husband for a temporary period, upon arrival in Canada, he plans to sponsor me for an immigration application from within Canada. This would be the truth as our intent stands at the moment but I am afraid that would mean an automatic rejection of my visitor visa appliation.

Perhaps, in order not to lie, we should simply change our intent and decide to file for me outside of Canada. Then, I could declare dual intent and hope that my tourist visa will be granted while my application is being processed outside of Canada.

I would appreacite your advice on how to proceed during the interview.

VM


Below is a CIC memorandum on the issue of dual intent and below it is information found at various websites on this issue.

The following is from:
http://www.cic.gc.ca/manuals-guides/.../op00-31e.html

Operations Memoranda - Overseas Processing


Manual

OP, PE, IP
OM number

OP 00-31, PE 00-26,
IP 00-10
Date

25 July, 2000
NHQ policy file no.
IMM 0750 no.

2055
Title

Clarification of Dual Intent
Type of OM

[ x ] For eventual
manual text
NHQ Contact

Economic Policy and Programs
In consultation with Port of Entry Management
[ ] Not destined
for manual text
(one-time
instruction only)
Branch

Selection Branch
Expiry date

25 July, 2001



Summary:

The purpose of this OM is to provide further guidance on the issue of dual intent

Background:

OP9, The Manual Chapter on Processing Visitors, says the following:

"4.2 Visitors with immigrant applications pending

The fact that a prospective visitor has an immigrant application pending or is planning
to apply for permanent residence is not, in itself, grounds to refuse to issue a visitor
visa. A person may have the dual intent of immigrating and of abiding by the
immigration law respecting temporary entry. The person's desire to visit Canada is very
often legitimate."

In addition, PE6 section 3.5, The Manual Chapter on Examining Visitors, states the
following:

"…The person's desire to await in Canada the outcome of an immigrant application
being processed outside Canada may be legitimate. You should distinguish between
such a person and an applicant who has no intention of leaving Canada if the
immigration application is refused…You should grant entry as a visitor to a person who
is an applicant for landing in Canada and who has received a favourable
recommendation for processing. The duration of time you grant may correspond to the
anticipated date of landing."

Clarification:

It is the present intention of the applicant which should be assessed when a person
applies to visit (including working and studying in) Canada. The applicant may have a
stated long-term goal of immigration to Canada, but if they satisfy the officer that they
have the ability and intention to enter Canada for a temporary purpose, a visa and/or
entry may be authorized. A person who is authorized to enter for a temporary purpose
should demonstrate a willingness and ability to leave Canada at the expiry of their
visitor status (where they have not sought, and been granted, an extension).

In Mittal v. MCI (1998, FCTD, May 28, 1998, IMM-2751-97, IMM-2752-97) the court
accepted that in applying section 9(1.2) of the Act "…the general question of bona
fides is not so much whether the applicant is a prospective immigrant, but
whether the applicant is a prospective illegal immigrant". The question is whether
a person seeking temporary entry at present, who may seek permanent residence in
the future, is likely to comply with the terms of their temporary status and leave Canada
upon the expiry of that status, regardless of whether an application for permanent
residence is pending. This allows for the issuance of visitor visas, or granting of visitor
status, to immigration applicants such as potential entrepreneurs who wish to conduct
an exploratory trip to Canada.

In determining whether a person does have a temporary intention, visa officers still have
the authority to examine the full situation of an applicant. In MCI v. Chun Hin Wong
(June 23, 1999, A-533-97) the Federal Court of Appeal firmly held that a visa officer is
entitled

"even at the moment of the first application for a visa, to examine the
totality of the circumstances including the long term goal of the
applicant. Such goal is a relevant consideration, but not necessarily
determinative, to be weighed with all the other facts and factors
[Such as the ties to the country of origin, whether there are credible
reasons for wishing to study in Canada, the age of the applicant,
whether prior acceptance has been obtained from an educational
institution in Canada and the likelihood of return to the country of
origin] in determining whether or not an applicant is a visitor within
the terms of the definition provided in the Act.".

This means that a visa or immigration officer can take into account not only the present
situation of an applicant, but also a long-term goal of immigration in determining
whether an applicant qualifies for temporary entry to Canada. For example, if the officer
feels that an applicant, by spending a temporary period in Canada, will be either
unwilling or unable to return and re-integrate into their own society, a visa for temporary
entry should be refused. The officer may take into account not only the present
application, but the fact that the applicant has the intention to apply for extensions of
status once in Canada.

Example Situations:

Outlined below are both (I) situations where an officer may determine that an applicant
has a genuine intent to enter for a temporary period, and (II) situations where the officer
may determine that the applicant does not have a bona fide temporary intent. These
examples are meant to be illustrative, and not determinative. Visa and
immigration officers must continue to consider each application on its own merits.

I. The following are some examples of situations where an officer may reasonably
conclude that an applicant (notwithstanding a stated intention to eventually obtain
permanent residence) meets the requirements for issuance of a visitor visa (and/or an
authorization to work or study), or admission at the port of entry: Note that in all five
sample cases described below, the applicants’ situation in their home country is such
that they could return and easily re-integrate back into their society.

1.Ms. X has applied for permanent residence in the Entrepreneur category. At her
interview, the visa officer has encouraged her to make an exploratory trip to
assess the viability of her proposed business venture, and to report back on the
results of her trip.
2.A holder of an employment authorization, Mr. B has been working for a Canadian
company for the past two years. He recently submitted an application for
permanent residence to Buffalo which is currently in process. His employment
authorization is about to expire, so he has applied for an extension to CPC
Vegreville and included a continuing offer from his Canadian employer.
3.Ms. K has been accepted to do her Master’s degree at a Canadian University.
She has been granted scholarship funds and a Teaching Assistant position. She
has admitted that if she likes Canada, and is accepted, her goal is to eventually
become a permanent resident (and later, a citizen). For the time being, she only
wants to study and work in Canada.
4.Mr. P, a recent high-school graduate, has applied to study English as a Second
Language (ESL) and has been conditionally accepted into a college program, yet
to be determined. Post-secondary education opportunities in his country are
limited. The parents of the applicants have accumulated sufficient funds over their
20-year working lives to pay all expenses. Upon completion of whatever program
the applicant is accepted into, the family’s life savings will be exhausted. The
applicant comes from a country/region of high unemployment and limited
socio-economic opportunities.
5.Mrs. L’s stated intention is to conduct an "immigration exploratory trip". She has
yet to submit an immigration application. She has family, employment, and assets
in her country of nationality / residence.

II. The following are some examples where an officer may reasonably determine that
there is doubt about whether the applicant has a genuine temporary intent. There may
be doubt about whether the following applicants have the ability and willingness to both
enter and leave Canada at the expiry of their visitor status.

1.C, a 10-year old boy from a country where the common language of work and
study is not English or French, applies to come and live with his Canadian uncle
and go to school in Canada. The boy’s mother says that she wants her son to
complete the whole of his education (through university) in Canada.
2.Young Mr. R applies to visit his fiancée in Canada. They plan to get married in his
country in 6 months and she will sponsor him for immigration, but in the meantime
he would like to just visit with her in Canada. He lives in a country which is far from
Canada and he is unemployed.
3.Mr. and Mrs. T are the parents of a Canadian citizen. They would like to visit for 6
months to see their son and see if they like Canada. Their stated intent is to apply
for landing from within Canada if they like it there.

Note that in both the first 5 examples and in the latter 3 examples, the officer may or
may not, after examining all the circumstances of the application, conclude that the
applicant meets the requirements for issuance of a visitor visa or student/employment
authorization, or admission at a port of entry. Each application must continue to be
assessed on its own merits. The examples are given just to illustrate cases where a
stated intent to immigrate may not preclude a genuine temporary intent, and cases
where a stated intent to enter temporarily is in reality an intent to enter permanently
without an ability or willingness to leave Canada. Ultimately, the officer must be
satisfied that the applicant who seeks admission as a visitor is a bona fide
visitor, notwithstanding evidence of an intent to immigrate.

Despite the fact that CIC allows for in-land immigration applications on humanitarian
and compassionate grounds, the principle that applications for immigration must be
made abroad still applies. If the officer believes that a visitor applicant would not be
willing or able to leave Canada at the expiration of their visitor status, then the applicant
should not be granted a visa/granted entry as a visitor.

Specific Instructions for Immigration Officers at a Port of Entry:

Immigration officers must be able to satisfy themselves that a person who has an
application for permanent residence in progress or intends to apply for permanent
residence while here will comply with the requirements of the Immigration Act and
regulations governing temporary entry. If officers are satisfied that the person will leave
Canada in order to have their application for permanent residence processed at a
mission abroad if, for any reason, their application from within Canada is refused then,
in line with the recognition of "dual intent", the person may, if otherwise admissible, be
admitted to Canada as a visitor.

Bona fide visitors:

The following Instructions apply in cases where a person deemed to be a bona fide
visitor at a Port of Entry also indicates that they plan to apply or are in the process of
applying for permanent residence in Canada:

Document these visitors on a Visitor Record (Form IMM 1097/1442.) For persons
who do not have an application for permanent residence already in progress, the
duration of the Visitor Record should be six months (thus, giving the visitor a time
limitation in which to submit an application for permanent residence to CPC
Vegreville). If the person already has an application for permanent residence in
progress, the duration of the Visitor Record should be of sufficient period of time
to allow the finalization of the application. In the absence of information indicating
when an application for permanent residence that is already in progress will be
finalized, officers should normally issue a visitor record for six months. There is no
cost recovery fee for this Visitor Record.
Counsel these visitors (and, where applicable, their "sponsors") regarding the
process for applying for permanent residence both from inside and from outside
Canada and for applying for an extension of visitor status. The consequences of
not following through with an application to the CPC should be clearly explained
(e.g. Expiration of visitor status, fees for re-instatement of status, possible
issuance of removal order, etc.). The fact that the person and/or sponsor was
counselled should be entered into the remarks section of the control document
(e.g. "counselled re: AFL process/kit issued").

Immigrants and Non-bona fide visitors:

Officers are not required to assess the bona fides of the claimed family class
relationship at a port of entry, or otherwise make an eligibility determination for potential
immigrants. However, in cases where there are obvious or significant reasons to doubt
the bona fides of the claimed relationship (or where the potential "sponsor" is
ineligible), and/or the officer is not satisfied that the person complies with all the
requirements of the Immigration Act and regulations, the officer (bearing in mind that
persons who seek admission rarely express their intent the same way the legislation is
written) may proceed as follows:

1.If the person is seeking admission as an immigrant (e.g. the person declares that
they are seeking admission to reside in Canada and have no plans to return to
their country of permanent residence) allow the person to leave Canada forthwith
without completion of a section 20 report (A20(1)(b)) or complete a section 20(1)
report citing A19(2)(d) and A9(1)(immigrant). Refer the report to the SIO with one
of the following recommendations:

Allow the person to leave Canada forthwith; or recommend
Issuance of a Minister’s Permit (code 80, see IP12) valid for 6
months; or
Issuance of an Exclusion Order; or
Direction for an inquiry.

2.If the person is seeking admission as a visitor and the officer doubts whether the
visitor has a genuine temporary intent, allow the person to leave Canada forthwith
without completion of a section 20 report (A20(1)(b)) or complete a section 20(1)
report citing A19(1)(h)(visitor). Refer the report to the SIO with one of the following
recommendations:

Allow the person to leave Canada forthwith; or recommend
Direction for an inquiry.

Which option the officer chooses will depend on the circumstances of each case,
including any humanitarian or compassionate grounds which may exist. If a permit is
issued, the officer should counsel the person to submit an application for permanent
residence at the CPC or at a visa office abroad.

Persons who are determined to be inadmissible to Canada on other grounds (e.g.
medical, criminal, etc.) are subject to the usual requirements (See IP 12). Please refer
to IP-5, Immigrant Applications in Canada made on Humanitarian or Compassionate
(H&C) Grounds.

If applicants are inadmissible, their need to come into Canada immediately must be
clearly demonstrated. The inconvenience of having to withdraw in order to apply at a
visa office for an immigrant visa is not sufficient reason to allow admission. It is
inappropriate to issue a Minister's Permit to an inadmissible person simply to
allow them to make an application for permanent residence from within
Canada.





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Last Updated: 2000 12
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Other info from various websites:


Q. I recently got married outside of Canada and was thinking of bringing her
here as a visitor and then starting the sponsorship process. I do know that one
can sponsor within Canada but my question is that by bringing her here as a
visitor for the purpose of sponsorship will that be looked us un-favourable?
--

R. Requesting admission as a visitor in order to be eligible for inland processing of a
sponsorship application may adversely affect the eligibility for such admission. By
definition, an individual who intends to remain permanently within Canada would not be
considered a visitor. This is not to
say, necessarily, that such admission is not possible, however, as the expression of dual
intent may be possible.


Dual Intent

Dual Intent refers to the concurrent processing of
an application for permanent residence and an
application for temporary status, therefore
demonstrating the intention to both reside in
Canada permanently and only temporarily, at the
same time.

Although this may appear contradictory at first
glance, in fact it is possible. Imagine, for
example, the following scenario: an individual
applies for a Visitor Visa (temporary status) in
order to visit Canada for an extended stay, fully
accepting that at the end of the visit, he or she
would leave Canada. During the visit, this
individual decides to apply for an Immigrant Visa
(permanent status) with the intention of
remaining in Canada permanently, provided that
the latter application is accepted. This is an
example of dual intent, and the same principle
may be applied to visitors who have been
granted Employment Authorizations, Student
Authorizations, etc.

An individual who has applied for an Immigrant
Visa is subject to the same requirements as
others when seeking entry into Canada as a
visitor. The individual should therefore possess
reasonable purposes for entry, be prepared to
leave Canada at the end of the visit, and
understand that if an Immigrant Visa is issued,
he or she must leave and re-enter Canada in
order to officially land as a permanent resident.

An application for temporary status may be
scrutinized more closely when an Immigrant Visa
application has been previously submitted, as
there is an apparent tendency to immigrate. If
the ties of the applicant to his or her home can
be demonstrated, however, an application for
temporary status may succeed. On the other
hand, an application for temporary status will not
prejudice an application for an Immigrant Visa.



Q:
I landed Canada as a permanent resident two monthes ago.My fiance has come to Canada as a tourist.We
got married in Canada last month.Can my husband stay in Canada and apply for his state of permanent
resident in Canada?While waiting for the result of his application,is he legal to stay with me in Canada?

A:
Until a non-Canadian-Citizen, or non-Canadian-Permanent-Resident is officially processed as a Landed
Immigrant in Canada, he is deemed to be a visitor. Visitors usually enter Canada for the sole purpose of
tourism, or visiting friends/family. (They can also be admitted as Temporary Workers or Students.)

If a visitor attempts to enter Canada with the intention of "living" in Canada, rather than "visiting", that
person can be refused entry.

If a visitor is granted entry to Canada, and overstays the conditions of visitor entries, (or violates the
conditions of visitor entries) then he/she can be considered to be "out of status". Being "out of status"
can subsequently negatively affect applications for permanent residency.

Some visitors are required to obtain "Visitor Visas". Others (such as citizens of the USA) are granted entry
without a Visitor Visa, but are nevertheless often required to exit Canada after 6 months.



Dual Intent
http://www.immigration.ca/tempent-visit.asp

In some cases an applicant wishing to apply for a visitor visa has an immigrant
application already in process. This area is referred to as dual intent. The fact
that a prospective visitor has an immigrant application pending or is even
planning to apply for permanent residence is not, in itself, grounds to refuse to
issue a visitor visa. A person may have the dual intent of immigrating and of
abiding by the immigration law respecting temporary entry. An intending
applicant for immigration to Canada may often have a legitimate reason to visit
Canada before the residence application is finalized. Visa officers attempt in
such cases, to distinguish between legal and illegal immigrants. Illegal
immigrants are those who have no intention of leaving Canada should their
immigration application be refused. As visa officers yield significant discretion
to issue or refuse a visitor visa this area of decision making has come under
increasing controversy.



____________________ Tourists

The tourist category applies to any visit to Canada which is does not involve employment or study.
Acceptable purposes include visits to friends and family, learning about Canada, and recreation.
Tourists are normally admitted to Canada for six months, unless a Visitor Record is issued
granting a shorter or longer period of time. Tourists from many countries must first obtain a visa
from a Canadian consulate abroad. U.S. citizens and permanent residents don't need visas. U.S.
citizens should have a passport or original state birth certificate to prove citizenship. After
September 11, immigration officials are more likely to demand such proof of U.S. citizenship.

About fifty million people are admitted to Canada every year as visitors, most without difficulty.
However, problems sometimes arise, either when applying for a visa, or at the port of entry. Here
are some of the most common issues:

Immigrant intent. All visitors to Canada are presumed to be immigrants. The burden is on the
applicant for admission to convince the visa officer or immigration official that he intends to
leave Canada when the visit is over. This is seldom an issue with U.S. citizens, unless the
person indicates an intent to marry a Canadian or otherwise expresses an intent to remain
in Canada. However, for visitors from poorer countries like China and India, immigrant intent
is a big problem, and visitor's visas are refused frequently. To get by this barrier, you need to
provide proof of strong ties to your home country, such as employment, a home or apartment,
and other family and social ties. You should also have proof of a definite purpose for your visit
to Canada, and proof of your ability to return including a round-trip ticket.
Illegal work or study. You should have proof that you will have a means of support while in
Canada, so you will not have to work illegally or go on welfare. You should also have proof of
medical coverage if you get sick. Canada's medical system does not cover tourists.
Criminal record. Canada has strict limits on the admission of people with criminal convictions,
including driving while intoxicated. This often presents problems at a port of entry. It is often
possible to obtain "rehabilitation" after five years. In other cases it is possible to obtain a
Minister's Permit. Consult with counsel if you have a criminal conviction and intend to visit
Canada.
Medical examination. If you are planning to stay in Canada for more than six months, and you
have been living in a country which has been determined to have a high rate of infectious
disease, you will have to have a medical exam by an approved doctor. This can create a long
delay in getting a visitor visa.

What if you have an immigration application pending?

Canada recognizes the concept of "dual
intent," and you can still be admitted as a visitor if the immigration officer is convinced you will
abide by the law, and leave Canada if your immigration application is refused. However, people
with immigration applications pending should exercise great care in entering or leaving Canada.

What if you have to stay longer than you expected?

You can file for an extension using form IMM
1249. This form is sent to the case processing center in Vegreville, Alberta. It must be filed before
your period of stay expires.
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