Where to File Your Canadian Immigration Application

So you know you want to immigrate to Canada and you even know what class of application you wish to file, but do you know where to file it? One of the most common mistakes and in some cases, missed opportunities, I see in my practice is when an immigration applicant files an application at the wrong visa office.

One of the cornerstones of immigration policy in Canada is the notion that a person wishing to immigrate to Canada must apply for their immigrant visa prior to arriving in Canada. Although Canada does have a number of “in-Canada” streams (refugees, humanitarian and compassionate grounds applications, Spouse in Canada Class, etc.), the vast majority of applications must be filed at an immigration office outside of Canada. In what some immigration lawyers call the “good old days,” that is, prior to the implementation of the Immigration and Refugee Protection Act (“IRPA”) in 2002, applicants could shop the world for the visa post that would process applications the quickest.

One practitioner who was very busy in the 1980s and early 1990s recently told me the story about how he used to file all of his Taiwanese business immigration cases through the Canadian Embassy in Santiago, Chile because that post offered fast and friendly processing.  To paraphrase Billy Crystal’s character Miracle Max in the epic movie “The Princess Bride,” since the implementation of IRPA, this practice is mostly dead but not all dead.

Under the IRPA Regulations, s.11, immigration applicants made outside of Canada must be filed at the immigration office that serves the country where the applicant is residing, if the applicant has been lawfully admitted to that country for a period of at least one year, OR at the immigration office that serves the applicant’s country of nationality (i.e. citizenship), or in the case of a stateless applicant, their country of habitual residence, so long as that person was lawfully admitted to that country.

To be clear, the portion of the rule requiring admittance into a country for a period of at least one year does not require that year to have passed prior to making an application. For example, if you have a study visa valid for one year in a given country and you are in that country, and even if you have only been in that country for one day and have 365 to go, you qualify. Further, if you have been in the country for 10 months and only have another 2 months to go before you have to leave, you still qualify.

Practically, this means that if you are, for example, a citizen of India but are in Canada with a one year work permit, you will have a choice as to where you file your immigration applications. The Canadian Consulate in Buffalo is the visa post responsible for applicants who have been lawfully admitted to Canada for a period of at least one year, and the Canadian High Commission in New Delhi is responsible for processing applications for persons with Indian citizenship or lawful status/admittance in India.

The choice as to where to file should be made based on a number of factors, including which post offers faster processing times, specific visa post requirements and which country is more convenient for travel in case a visa officer requests the applicant to attend an interview. Application processing time estimates are posted on Citizenship and Immigration Canada’s website, so that is a great place to start on the timing issue. However, if you are an in Canada but do not have a US entry visa, you should weigh the risk of being requested for an in person interview in the US against the convenience of typically faster processing times.

A further complicating factor is that CIC set up a central intake office (“CIO”) in Canada for all global Federal Skilled Worker applications. Applications are to be filed at the CIO and then the CIO farms out the applications to various immigration offices based on s.11. The onus is on the applicant in these applications to indicate to CIC as to which visa post they wish to process their application after the CIO completes their initial screening of the application. That means the applicant has to prove either citizenship or lawful admittance for a period of at least one year or lawful habitual residence (for stateless people) in the country in which they want their application processed when they file their Federal Skilled Worker application.

One further complication is that even if an applicant qualifies under s.11 to have their application processed at a particular immigration office, CIC reserves the right to send the application to another visa post for processing for any warranted reason related to program integrity.

At the end of the day, this issue is well worth a thorough examination by any visa applicant prior to filing an application. Similar rules are in place for applicants wishing to apply for temporary status in Canada, stay tuned for the details in my column next month.

Ryan Rosenberg is am immigration lawyer and partner with Larlee Rosenberg, Barristers & Solicitors, in Vancouver. Contact Ryan at 604-681-9887 or Ryan.Rosenberg@larlee.com or visit his website at www.larlee.com.