Can your Canada visa application be rejected for a pending residency application in the US?
The Federal Court of Canada, in its recent judgment, Khan v Canada, (Citizenship and Immigration), addressed a pivotal issue pertaining to the overarching logic of the visa officer in inferring the “dual intent” of the applicant. This inference was made during the assessment of the applicant’s permanent residency application under the Quebec Investor Class filed in the year 2017. The officer’s apprehension about the applicant’s intention to reside in Quebec stemmed from a study permit application for the applicant’s daughter in Ontario and a pending US residency application filed by the applicant’s sister-in-law in 2012, which also enlisted Khan.
The primary contention for rejection was anchored in subsection 90(2)(b) of the Immigration and Refugee Protection Regulations (IRPR) which states that an applicant under the Quebec Investor Class must have an intention to reside in Quebec as a mandatory requirement. Upon rejection, the applicant filed an application for judicial review under subsection 72(1) of the Immigration and Refugee Protection Act (IRPA).
The court allowed the application and set aside the decision of the visa officer on the grounds that the officer’s rationale was unintelligible and devoid of logic. Highlighting the five-year interval between the two applications, the court further underscored the possibility that the applicant’s preference to reside in the US could have changed over this period. The court criticized the officer’s oversight of the applicant’s genuine intent to reside in Quebec and held that the reasons for rejection should be transparent and backed by intelligible justifications.
This judgment comes at a pivotal moment, coinciding with the launch of Canada’s first-ever Tech Talent Strategy program, presenting renewed hope for aspiring immigrants currently holding H-1B visas in the USA seeking a stable and secure future in Canada.
How can H-1B visa holders move to Canada from the USA under the Tech Talent Strategy program?
Under Canada’s Tech Talent Strategy, H-1B visa holders in the USA now have a remarkable opportunity to apply for an open work permit in Canada. This stream enables highly skilled individuals to explore and contribute their expertise to Canada’s dynamic tech industry, while also providing accompanying family members with the option to apply for temporary resident visas, including work or study permits. This strategy emphasizes Canada’s commitment to attracting and retaining top tech talent, fostering innovation, and supporting the integration of skilled professionals and their families. Unfortunately, and expectedly, as of the writing of this blog article, the pathway is officially closed after being open for mere days. We expect that we could see another similar program in the future.
How to immigrate to Canada from the USA? What are the different immigration pathways?
Are you an H-1B visa holder in the US, seeking a new path for a safe and stable future? Well, there’s no denying the fact that Canada has become a global magnet for immigration, offering numerous pathways for those considering a move from the USA and other countries in the world. If you’re seeking new opportunities and a brighter future, explore your possibilities under any of the following Canadian immigration programs:
Express Entry: Canada’s Express Entry system manages skilled worker applications for permanent residence. With the US being the fourth most common place of residence for Express Entry candidates, US citizens and residents are highly qualified due to their language skills, work experience, and education. The program includes the Federal Skilled Worker Program, Canadian Experience Class, and Federal Skilled Trades Program. Additionally, category-based draws under Express Entry prioritize candidates with strong French language proficiency or experience in specific fields, such as healthcare, STEM (science, technology, engineering, math) professions, trades, transport, agriculture, and agri-food.
Global Talent Stream: Canadian employers in high-growth and tech industries can streamline the hiring of skilled workers through the Global Talent Stream. This program aims to process work permits in one month or less when Canadian workers are not available to fill the positions.
Intra-Company Transfer: For international businesses with affiliate offices or branches in Canada, the Intra Company Transfer program allows them to bring essential employees to Canada without the need for an LMIA. Eligible employees in executive, managerial, or specialized knowledge roles can work as intra-company transferees.
Start-Up Visa Program: Entrepreneurs with sufficient funds to settle in Canada and the support of designated venture capital funds, angel investor groups, and business incubator organizations can obtain permanent residence through the Start-Up Visa program. The aim is to recruit innovative entrepreneurs who will create new jobs and drive economic growth in Canada.
If you’re an H1B visa holder in the US and are considering immigration options to Canada, immigration lawyers at Shory Law are here to guide you towards a safe and stable future. Contact us today at 403-216-1199 to explore your possibilities and make the transition to Canada’s thriving tech ecosystem.