In a recent federal decision titled Khan v Canada (Citizenship and Immigration), the court ruled that an immigration officer’s decision to consider an outstanding US residency application as it pertains to the applicant’s intention to reside in Canada was deemed unreasonable. The case involved Mr. Khan, a citizen of Bangladesh, who had applied for permanent residence in Canada under the Quebec Investor Class, including his wife and daughter as dependents.
During the review of the application, the immigration officer expressed concerns regarding Khan’s intention to reside in Quebec, as it is a requirement under the Immigration and Refugee Protection Regulations (IRPR). One of the factors contributing to the officer’s doubts was the fact that Khan had been included in a US residency application submitted by his sister-in-law back in 2012, which was still pending at the time. After discussing these concerns with Khan, the officer remained unconvinced of his intent to reside in Quebec and subsequently refused his application for permanent residence on the grounds of not meeting the requirement.
However, the Federal Court concluded that the immigration officer’s decision was unreasonable. The court determined that it was not appropriate for the officer to consider the outstanding US residency application as a decisive factor in assessing Khan’s intention to reside in Canada. The court’s decision highlights the need for a fair and reasonable assessment of an applicant’s intent to reside in the chosen Canadian province, without unfairly factoring in the status of other pending applications in different countries.
This ruling emphasizes the importance of a thorough and unbiased evaluation of an applicant’s specific circumstances when making immigration decisions, ensuring that the process remains fair, transparent, and in accordance with the applicable regulations.
In the Khan v Canada (Citizenship and Immigration) case, the Federal Court found the immigration officer’s decision to be unreasonable. The officer’s concerns about the applicant’s intent to reside in Quebec were based on an outstanding US residency application submitted by the applicant’s sister-in-law. However, the court noted that the applications were submitted five years apart, and by the time of the interview, the US application had been pending for 10 years.
The court emphasized that the applicant’s interest in living in the US did not negate his intent to reside in Canada, particularly as he expressed a preference for residing in Quebec. The court ruled that it was illogical and unreasonable to infer that the applicant still intended to reside in the US based on the outstanding application, especially considering he did not have control over it. This case sets an important precedent, affirming that applicants for Canadian immigration are entitled to have dual intent and that having an intent to reside in the US does not negate their intent to reside in Canada.
Future applicants should not be rejected solely on these grounds.
Coming to Canada from the US: Streamlined Work Permit and Express Entry
If you are currently holding an H1-B specialty occupation visa in the US or are a skilled worker looking to migrate to Canada, there are two main pathways available to you:
- Streamlined Work Permit for H1-B Holders: IRCC (Immigration, Refugees and Citizenship Canada) has recently introduced a streamlined work permit specifically designed for H1-B specialty occupation visa holders in the US. Recognizing that many companies have operations in both the US and Canada, IRCC aims to facilitate the mobility of workers between the two countries. Starting from July 16th, H1-B holders and their accompanying family members can apply to work in Canada. Approved applicants will receive an open work permit valid for up to three years, allowing them to work for any employer across the country. Moreover, spouses and dependents may also be eligible to apply for a temporary resident visa. It’s important to note that this measure is expected to remain in effect for one year or until IRCC reaches 10,000 applications.
- Express Entry: Express Entry is Canada’s system for managing applications for permanent residence from skilled workers. US citizens and residents often possess strong qualifications for Express Entry due to their proficiency in English or French, skilled work experience, and high levels of education.
Under Express Entry, there are three main programs:
- Federal Skilled Worker Program: For skilled workers with foreign work experience.
- Canadian Experience Class: For skilled workers with Canadian work experience.
- Federal Skilled Trades Program: For skilled workers with qualifications in a specific trade.
In addition, IRCC has introduced category-based draws under Express Entry, which prioritize candidates with strong French language skills or work experience in specific fields such as healthcare, science, technology, engineering, mathematics (STEM), trades, transportation, agriculture, and agri-food.
These pathways offer opportunities for H1-B visa holders and skilled workers in the US to explore immigration options in Canada, either through a streamlined work permit or the Express Entry system. It is recommended to consult with immigration professionals or visit the official IRCC website for detailed information and guidance on the specific requirements and processes for each pathway.
Looking to navigate the complexities of immigration from the US to Canada? Brace Law is here to assist you. Our experienced team can provide a comprehensive assessment of your situation and suggest the best options based on your circumstances. With offices conveniently located in Oakville and Vaughan, we are ready to serve you in multiple languages, including English, Italian, Albanian, Arabic, Punjabi, Farsi, Hindi, Malayalam, Tamil, and Urdu.
Whether you require guidance on the streamlined work permit for H1-B holders or assistance with the Express Entry system, our knowledgeable professionals are here to help. Contact us at 905-815-6555 or email admin@bracelaw.ca to schedule a consultation. At Brace Law, we are committed to delivering reliable and affordable services, offering consultations and meetings by phone and virtually. Trust us to handle your immigration needs with expertise and care.
