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Important corporate immigration updates

immigrationThis update includes:

  • Cut-off age for dependent children raised
  • Traveling visa-free to Canada for eligible Bulgarians, Romanians, Brazilians
  • Conditional permanent residence for spouses and partners eliminated

IRCC raises the cut-off age for dependent children

On August 1, 2014, Citizenship and Immigration Canada, which is now called Immigration, Refugees, and Citizenship Canada (“IRCC”), revised the definition of “dependent child” by decreasing the maximum age from “under 22” to “under 19” and deleted the exception that existed for older children who were financially dependent on their parents and enrolled in full-time studies. However, it did not eliminate the exception for children who, regardless of age, have depended on their parents for financial support because of a mental or physical condition.

On May 3, 2017, IRCC announced that it had published regulatory changes that would again increase the maximum age of a dependent child to “under 22.” The new age limit will come into effect on October 24, 2017, and will apply to new applications filed under all IRCC immigration programs, including refugees. Children who are 22 years of age or older and who rely on their parents due to a physical or mental health condition will continue to be considered dependent children.

Eligible Bulgarians, Romanians, Brazilians may now travel visa-free to Canada

Until May 1, 2017, all citizens of Bulgaria, Romania, and Brazil were required to obtain a Temporary Resident Visa (“TRV”) before applying for admission to Canada. However, as of May 1, 2017, many citizens of these countries are now permitted to enter Canada without a TRV.

The prior TRV requirement for citizens of Bulgaria and Romania was a significant issue for the European Union (“EU”), of which Bulgaria and Romania are Member States. The EU has a common list of countries whose citizens must have a visa and of countries whose citizens are exempt from that requirement.  A fundamental principle of EU visa policy is to ensure that third countries on the visa-free list grant a reciprocal visa waiver to citizens of all EU Member States.

On April 12, 2016, the European Commission adopted a Communication on the visa reciprocity situation with both Canada and the United States, evaluating the progress achieved in discussions with both countries and setting out the next steps. The Communication stated that the consequences of a potential suspension of the visa waiver would have a substantial impact on the EU’s external relations with Canada and the United States.  It also stated that a suspension would very likely lead to negative economic impacts for the EU, without bringing about full visa reciprocity.  However, the European Commission invited the European Parliament and the European Council to take a position on the most appropriate way forward by July 12, 2016.

Faced with increased pressure from the EU, the Government of Canada has apparently capitulated and granted a TRV exemption to citizens of Bulgaria and Romania, at least in certain situations.  As of May 1, 2017, citizens of Bulgaria and Romania (and also Brazil) who: (a) have held a TRV in the last ten years, or (b) currently hold a valid U.S. nonimmigrant visa will now have the option of applying for an Electronic Travel Authorization (“eTA”) instead of a TRV, if they will be travelling to Canada by air.  However, those who cannot qualify for an eTA or who will be travelling to Canada by land or sea will still need a TRV.

An eTA requirement itself is not unreasonable, since it is imposed on all visa-exempt citizens (with the exception of United States citizens) who travel to Canada by air.  However, while citizens of other visa-exempt countries may enter Canada by land or sea without a TRV or an eTA (which is only required for air travel), citizens of Bulgaria, Romania, and Brazil will continue to require TRVs in such cases.  In addition, by making the eTA option available only to those who have held a TRV in the last ten years or who currently hold a U.S. nonimmigrant visa, it is clear that the Government of Canada is only interested in extending the TRV exemption to low risk travelers.

Government of Canada eliminates conditional permanent residence for spouses and partners

The former Conservative Government initially proposed the requirement of conditional permanent resident status for certain spouses and partners of Canadian citizens or permanent residents on March 9, 2012. The concept of conditional permanent resident status was likely borrowed from the United States, which has imposed a similar requirement on sponsored spouses of United States citizens and permanent residents for years.

The former Conservative Government formally implemented this requirement on October 25, 2012. As of that date, conditional permanent resident status applied to:

  1. Spouses and partners who applied for permanent residence as members of the Family Class or the Spouse or Common-Law Partner in Canada Class (including applicants who were eligible for processing under a public policy) and whose relationship with the sponsor was less than two years old (and who had no children in common with the sponsor) at the time of the sponsorship application;
  2. Those who became permanent residents as an accompanying family member of someone who was subject to the condition; and
  3. Sponsored members of the Family Class, of a permanent resident who was subject to the condition.

Any sponsored spouse or partner who was subject to the condition was required cohabit with their sponsor in a conjugal relationship for a period of two years after the day they became a permanent resident.

The condition was intended to deter fraudulent applications, including marriage fraud in the family reunification program. Of course, critics alleged that it forced vulnerable sponsored spouses or partners to stay in abusive relationships because they are afraid of losing their permanent resident. Although an exception to the condition existed in the regulations, not all vulnerable spouses and partners were able to satisfy the requirements.

On April 28, 2017, the current Liberal Government announced that it had eliminated the requirement of conditional permanent resident. This change will apply to anyone who was previously subject to the requirement, as well as to new spouses and partners who are sponsored as permanent residents.

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Henry J. Chang, Dentons LLP

Corporate immigration lawyer at Dentons LLP
Henry J. Chang is a partner in the firm’s Employment and Labor Group. He currently practices in the areas of Canadian and United States business immigration law, international business law, and cannabis law. Read more
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