Home / Canadian Court Rules Prior U.S. Residency Application Should Not Affect Future Intention to Reside in Canada

Canadian Court Rules Prior U.S. Residency Application Should Not Affect Future Intention to Reside in Canada

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The federal court ruling in Khan v Canada (Citizenship and Immigration) declares that it was unreasonable for an immigration officer to consider an outstanding US residency application about the intention to reside in Canada.

The recent federal decision in Khan v Canada (Citizenship and Immigration) involved an applicant named Khan, a citizen of Bangladesh, who applied for permanent residence in Canada under the Quebec Investor Class. The immigration officer reviewing the application had concerns regarding Khan’s intention to reside in Quebec, a requirement under the Immigration and Refugee Protection Regulations (IRPR). The officer’s concerns stemmed from Khan’s inclusion in a pending 2012 application for US residency submitted by his sister-in-law.

Despite discussing the concerns with Khan, the officer remained unconvinced of his intent to reside in Quebec and subsequently refused his application for permanent residence. Khan sought a judicial review, arguing that the decision was unreasonable. The court agreed with Khan’s argument, highlighting several reasons for its decision.

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Canadian Court Rules Prior U.S. Residency Application

Details of the Case

Firstly, the court found it unreasonable for the officer to conclude that Khan’s 2012 US residency application was inconsistent with his current genuine intention to reside in Quebec. There was no logical reason why both intentions could not coexist, as Khan would first live in Quebec if granted Canadian residency.

Secondly, the court emphasized the significant time gap between the two applications. When they interviewed Khan, his US application had been pending for ten years. The officer failed to consider whether Khan’s interests and intentions could have changed during this period. In fact, during his interview, Khan expressed a preference for residing in Quebec rather than the US.

Thirdly, the court deemed the officer’s inference that Khan’s failure to withdraw the US application implied an illogical and unreasonable intention to reside in the US. Khan clarified during the interview that his sister-in-law, not him, applied, indicating his lack of control over the matter.

In addition, the court concluded that the officer’s decision was unreasonable based on unintelligible reasoning, the substantial time gap between applications, and Khan’s lack of control over the US application.

This case holds significance as it establishes that Canadian immigration applicants can have dual intent to reside in both Canada and the United States. The court’s ruling, declaring the officer’s decision unreasonable, ensures that future applicants should not be rejected solely based on this. It affirms that the intent to reside in the US does not negate the intention to live in Canada.

Guide: Immigration from the United States to Canada

Express Entry

Express Entry is Canada’s system for managing skilled worker applications for permanent residence. In 2021, the United States ranked fourth as the most common place of residence for recipients of Invitations To Apply (ITAs) in the Express Entry pool. US citizens and residents often possess strong qualifications for Express Entry, including proficient language skills, extensive work experience, and high levels of education.

Express Entry encompasses three programs:

  • The Federal Skilled Worker Program – for skilled workers with foreign work experience.
  • The Canadian Experience Class – for skilled workers with Canadian work experience.
  • The Federal Skilled Trades Program – for skilled workers with qualifications in a skilled trade.

Additionally, IRCC has introduced category-based draws within Express Entry. These draws prioritize candidates with strong French language proficiency or work experience in specific fields. It includes healthcare, science, technology, engineering, and mathematics (STEM) professions, trades (such as carpenters, plumbers, and contractors), transport, agriculture, and agri-food.

Canadian Court Rules Prior U.S. Residency Application

H-1B Visa – Speciality Occupation Work Visa

The IRCC recently introduced a streamlined work permit specifically designed for H-1B visa holders in the US who wish to work in Canada. Recognizing that many individuals employed by US companies also have operations in Canada, the IRCC aims to facilitate their transition.

Starting July 16th, H-1B visa holders and their accompanying family members can apply to come to Canada. Approved applicants will receive an open work permit, valid for up to three years, allowing them to work for various employers nationwide. Moreover, spouses and dependents may be eligible to apply for a temporary resident visa.

This measure will be in effect for one year or until the IRCC receives 10,000 applications, whichever comes first.

Exploring Alternative Pathways: Additional Options to Consider

Global Talent Stream: This program facilitates the streamlined hiring of skilled workers by Canadian employers in high-growth and tech industries. While an LMIA is required, the IRCC aims to process work permits under this program in one month or less.

Intra-Company Transfer: Designed for American businesses with affiliate offices or branches in Canada, this program enables the transfer of key employees to Canada without the need for an LMIA. Eligible employees in executive, managerial, or specialized knowledge roles can work in Canada as intra-company transferees.

Start-Up Visa: Through this program, entrepreneurs with sufficient settlement funds and the support of designated venture capital funds, can obtain permanent residence. Including angel investor groups, or business incubator organizations. The Start-Up Visa aims to attract innovative entrepreneurs who will generate new jobs and drive economic growth in Canada.

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