CanadaCanadian CitizenshipCanadian Experience ClassJuly 19, 2023by Lalith Kumar GhantaCanadian court rules prior application for U.S. residency should not impact future intent to reside in Canada

In a recent federal case called Khan v Canada (Citizenship and Immigration), the court ruled that the decision made by an immigration officer to consider an ongoing US residency application as a factor in determining an applicant’s intention to reside in Canada was unreasonable. The applicant, Khan, is a citizen of Bangladesh who applied for permanent residence in Canada under the Quebec Investor Class, including his wife and daughter as dependents.

During the application review, the immigration officer expressed concerns about Khan’s intention to reside in Quebec, which is a requirement under the Immigration and Refugee Protection Regulations (IRPR). One of the officer’s concerns stemmed from Khan’s inclusion in a residency application filed by his sister-in-law for the United States in 2012, which was still pending. Despite discussing these concerns with Khan, the officer remained unconvinced of his intent and rejected his application based on the inability to satisfy the requirement to intend to reside in Quebec.

Khan sought a judicial review, arguing that the decision was unreasonable. The court agreed with Khan and identified several reasons why the decision was unreasonable. Firstly, it found it illogical for the officer to conclude that Khan’s 2012 US residency application contradicted his current genuine intention to reside in Quebec. The court pointed out that an applicant can intend to reside in whichever country grants them residency first, meaning Khan could reside in Quebec if Canada granted him residency before the US.

Secondly, the court highlighted that the two applications were filed five years apart, and by the time of the review, Khan’s US application had been pending for ten years. The officer failed to consider the possibility that Khan’s interest in living in the US may have changed over time. In fact, Khan expressed his preference for residing in Quebec during the interview.

Lastly, the officer inferred that Khan’s failure to withdraw the US application indicated an intent to reside in the US rather than Quebec. The court deemed this inference illogical and unreasonable since Khan did not have control over his sister-in-law’s application. Khan made it clear during the interview that his sister-in-law had submitted the US application, not him.

This case holds significance as it establishes that Canadian immigration applicants are allowed to have dual intent and express an intention to reside in the United States as well. It emphasizes that the intent to reside in the US does not negate the intent to reside in Canada. With the court ruling the officer’s decision as unreasonable, future applicants should not face rejection based on these grounds.

To immigrate from the US to Canada, there are several pathways available. One of them is the H1-B specialty occupation visa, for which the IRCC has introduced a streamlined work permit. This permit allows H1-B holders and their family members to apply to work in Canada. Approved applicants receive an open work permit for up to three years, providing flexibility to work for various employers across the country. Spouses and dependents may also be eligible for a temporary resident visa.

Another option is the Express Entry program, which manages skilled worker applications for permanent residence. US citizens and residents often qualify well for Express Entry due to their language skills, work experience, and education. The program includes the Federal Skilled Worker Program, the Canadian Experience Class, and the Federal Skilled Trades Program. Recent category-based draws under Express Entry give preference to candidates with strong French language proficiency or work experience in specific fields such as healthcare, STEM professions, trades, transport, agriculture, and agri-food.

Furthermore, the Global Talent Stream allows Canadian employers in high-growth and tech industries to hire skilled workers when Canadian candidates are not available. The Intra Company Transfer program enables international businesses with affiliate offices in Canada to bring key employees without the need for an LMIA. The Start Up Visa program grants permanent residence to entrepreneurs with sufficient funds and support from designated venture capital funds, angel investor groups, or business incubators.

Overall, these pathways provide various opportunities for individuals in the US to immigrate to Canada based on their qualifications, skills, and intentions.cropped-canada.png