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Home > Issues > Binational Couples > Canadian Options
With options for same sex, binational couples being so limited in the United States, many couples are considering moving to Canada to stay together. What follows is basic information about immigrating to Canada. For more in-depth information about your situation, please contact LEGIT, a Canadian non-profit which works on LGBT immigration issues, or email Immigration Equality for a list of LGBT/HIV-friendly Canadian private immigration attorneys.
Can my partner and I marry in Canada?
Yes, anyone from any country, regardless of whether you or your partner is a Canadian citizen, can marry in the Canadian provinces which recognize gay marriage. The Canadian government will then recognize you and your partner as a married couple for immigration purposes. However, divorce in Canada has residency requirement, thus, though you and your partner can marry, you may not be allowed to divorce in Canada.
Can my partner and I immigrate together to Canada?
Maybe. Canadian immigrant visas are given to close family members of Canadian citizens (including same-sex partners), qualified skilled workers, and business persons. If one of you is a Canadian permanent resident or citizen, sponsorship is a possibility. If neither of you is a Canadian permanent resident or citizen, you can apply for permanent residency as a common-law (have lived together for at least one year) couple or as spouses if legally married.
As a Canadian permanent resident or citizen, can I sponsor my same-sex partner for Canadian citizenship?
Yes. If you are a Canadian citizen or permanent resident (“landed immigrant”), you can sponsor a same sex partner who falls into the following categories: (1) Married partner, as long as the marriage is legal where it took place. (2) Partners that are living together and have done so for at least one year. (3) Partners that have been in a relationship for one year, but cannot demonstrate one year of cohabitation.
How does someone become a Canadian permanent resident?
As a skilled worker, a business person, or through a family relationship.
- Skilled workers may become permanent residents because they are able to become economically established in Canada. To be accepted as a Skilled Worker, applicants must excel in most of the following categories: (1) have enough money to support their family for sixth months after moving to Canada. (2) speak either English or French (3) have a high level of education (4) have many years of work experience (5) are younger than 49 years old (6) have an offer of employment in Canada.
- Business immigrants are those who invest in or start businesses in Canada. To qualify, you generally must have relatively high personal wealth, and show that you will either invest CDN $400,000.00 in a business, own and actively manage a business, or start a business in Canada.
Family class immigrants are those sponsored by a Canadian family member. Canadian permanent residents or citizens can sponsor a spouse or partner, parent, grandparent, dependent child, a child who will be adopted, and orphaned brothers or sisters, nieces, nephews, or grandchildren who are under 18.
Neither of us are Canadian permanent residents. How can we immigrate to Canada?
The one of you who is the strongest candidate should file an application for immigration to Canada as a skilled worker or business person. You must include your partner as a dependent in your application if you are a common-law (have lived together for at least one year) couple or legally married spouses. Any legal marriage (that is legal in the country or state where it was performed, which would currently include Canada, Belgium, the Netherlands, Spain and Massachusetts), or cohabitation for one year, is required to include your partner as a dependent. Therefore, if you cannot provide evidence of one year of co-habitation, a legal marriage is required in order to list your same-sex partner on your application for Canadian permanent residency.
My partner and I haven’t been able to live together because of persecution in our country. Can I still include him/her as a dependent?
Yes. If your and your partner have been together for more than one year, but haven’t been able to live together due to fear of criminal sanctions, then you may still be able to include your partner as a dependent on your application.
Will my / my partner’s dependent children be included in the application?
Yes, dependent children of you and/or your partner must be included for immigration to Canada.
As a Canadian permanent resident, can I sponsor a partner still living in their home country?
Yes. Sponsorship papers and application for permanent residence are filed in Canada. However, they are then sent to the Canadian immigration office specializing in the country of origin for review and processing. For American applicants, that office is the Canadian Consulate, in Buffalo.
As a Canadian permanent resident, can I sponsor a partner who is already living in Canada?
Yes as long as you are common law partners or married. The process is slightly different. In this case all the sponsorship papers and application are filed in Canada and processes completely within Canada. First, the immigration official must determine the relationship is genuine, which takes approximately four months. After this point, your non-Canadian partner can apply for a work permit while the application continues to process.
Should my partner and I get married to help with immigration into Canada?
Not necessarily. Marriage is not the only means of sponsorship. If you and your partner have been living together for more than 1 year, you may qualify for “common law partner” status, which (like marriage) allows your immigration application to be processes together.
Is HIV/AIDS a grounds for inadmissibility to Canada?
Maybe. If you have a Canadian spouse or partner, you should be able to immigrate to Canada even if you are HIV-positive. Because of the costs associated with HIV treatment, however, you probably will not be able to immigrate under the “point system” because the Canadian government fears that the cost of your illness could become an “excessive burden” on Canadian health or social services.
Where can I get further information?
The organization LEGIT in Canada works on LGBT immigration issues there. Their website is LEGIT.ca. Immigration Equality also has a list of private, LGBT/HIV friendly immigration attorneys in Canada who may be able to give you further information.
Do I have a better chance of winning asylum in America or Canada?
Officially, the standard for asylum in Canada is the same as that in the U.S.: The applicant must have suffered persecution or have a well founded fear of persecution in due to their race, nationality, religion, political opinion, or membership in a particular social group. However, Canada has historically been more lenient in reviewing and granting asylum applications.
Can I choose whether to apply for asylum in the U.S. or Canada?
Unless you meet one of the exceptions below, no. In December 2004, Canada and the United States implemented the "Safe Third Country Agreement" which requires most asylum seekers to apply for asylum in the first of these two countries that they entered. In other words, if a potential asylum seeker from Venzuela has flown into the U.S., has been here for a few days, and decides to present himself at the Canadian border to request asylum in Canada, he will not be permitted to enter Canada to seek asylum, and will instead be instructed to pursue his claim in the U.S.
Even under the agreement, however, there are exceptions to this rule, if you:
- did not arrive directly from Canada/U.S.
- have family members in the country you wish to file asylum in (includes spouses, sons, daughters, parents, legal guardians, siblings, grandparents, grandchildren, aunts, uncles, nieces, and nephews)
- would not have your protection claim adjudicated in one of the two countries
- do not have a country of nationality, but are a habitual resident of Canada.
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