application process with overstayed wife

[hodge4394]

Long story but here goes. My wife (US citizen) were married in Canada in 2005. We had all intentions of proceeding with her immigration to Canada. I had financial issues and was seriously concerned with having to file for bankruptcy and we never filed the completed application. She had medical and criminal paperwork completed at that time.

I dug myself out of the financial problems and we now want to proceed with her application. I sure she will have to redo her medical and criminal check but have questions:

What trouble can we expect with her being here so long?

Should we be seeking the advice of a lawyer.

Her passport and drivers license have both expired.

She has not left Canada since 2007.

Any advice would be greatly welcome.

 

[CheshireCats]

There is a new public policy about spousal overstay...My husband is in the very same boat...we had to first file for restoration of status, however, restoration of status is usually supposed to be applied for within 90 days of overstaying...and restoration of status is taking forever for them to process for us at the moment. They received our application on January 23rd and we're still being told it could take a while...my suggestion would be to seek some legal advice, however there are senior members here on this site that might be able to help...

http://www.cic.gc.ca/english/information/faq/immigrate/sponsor/index.asp

Under Spouses, partners and dependent children

Yes. You can apply for permanent residence under a public policy that creates exceptions to the Spouse or Common-law Partner in Canada Class, if you are still in Canada. You can download the application kit, or order it by contacting the Citizenship and Immigration Canada (CIC) Call Centre, toll free at 1 888 242-2100 (from within Canada only). CIC will mail the application kit to you—delivery takes about two weeks.

The application kit contains everything you will need, including the sponsorship application that your spouse or partner must fill out.

 

[CheshireCats]

Also, I want to add...as long as you haven't filed bankruptcy then you are eligible to sponsor...and there is no minimum income required to sponsor a spouse...we did all the paperwork our self...it took a long time to do and is very frustrating, but we couldn't afford a lawyer so had no choice but to do it ourselves...the reps at the CIC are helpful (to an extent) and whenever I hit a brick wall, I called them to walk me through it.

Good luck with your application.
It's a long long wait!

 

[RobsLuv]

DON'T apply inland - she's out of status and that means ridiculous timelines and absolutely NO ADVANTAGE to either of you. If you apply inland, the overstay becomes an issue and you're looking at a couple of years to even get her first stage of approval. She does not have to be in the US in order to have her application processed outland through Buffalo, but she does have to leave Canada at some point in order to get herself back in compliance on the overstay. By applying outland she's enabled to do that, and then you accompany her back into Canada to ask that she be documented for temporary status to stay with you while the PR ap is processing. They're not going to know that she's overstayed since 2007 unless you tell them.

There's more details on the US2Canada website. Check it out - especially the part about Visiting/Visitor Records. She's able to have her immigration medical done in Canada - even for an outland ap - and it's also possible to order an FBI clearance from Canada. And she'll need to order her passport - which can be done from Canada as well. Here's the information.

I don't recommend that she leave Canada until after you have the PR ap in process - but she does have to leave in order to reinstate valid temporary status and be legal to stay. Don't mention on re-entry that she's been here without status for 5 years - they'll turn her around for sure. The important point is that that technically all goes away as soon as she steps on US soil - but that doesn't preclude officers at the border from using it against her as proof that she will not comply with the requirement to leave or extend her status . . . if you reveal it! So leave it alone. As soon as you have your sponsorship approval letter, the two of you take a trip to the US for a few days, and then you accompany her back to Canada and ask that they document her on a Visitor Record - with proof of your marriage and your sponsorship approval as support. That will enable her to remain legally in Canada during processing of the outland ap, and will give her what she needs to apply to extend her temporary status (the VR) from within Canada if her PR has not been approved by the time it's due to expire. US citizens in Canada can actually accomplish the entire outland PR process without having to leave Canada, as long as there is sufficient evidence included with the application to support the "genuine" relationship so that the interview is waived.



The biggest piece is to get the PR sponsorship in process - then straighten out her temporary status and DON'T let it expire again!

 

[amaranth]

Before you do anything else, she will need to renew her passport. A current valid passport is required for both the PR app AND entry to the States.

 

[hodge4394]

Thank you for the information, it is much appreciated. I need to reread your advice to fully understand the outbound application.

 

[hodge4394]

We discovered my wife's passport is in fact still valid. We have decided to request a renewal of her passport with her name change as her originalis in her maiden name.
We have a new set of fingerprints and will be sending request for US record check as her original is long expired as soon as the new passport is back.
A new medical is scheduled as it also expired.

A couple questions regarding Outbound application:

If I understand it correctly the entire application is sent to Mississauga and once the sponsorship application is processed the application is sent to Buffalo??

If I understand the advice of Robsluv, it would be advisable to wait until I have an accepted sponsorship approval we could travel to the states together and then return and ask for a visitor record (along with all evidence of PR intent and marriage evidence) for her to stay in Canada while waiting for PR.

Any advice for anything I missed would be greatly appreciated.

Hodge

 

[scylla]

Yes - send everything to Mississauga.

 

[pinklady]

If I understand the advice of Robsluv, it would be advisable to wait until I have an accepted sponsorship approval we could travel to the states together and then return and ask for a visitor record (along with all evidence of PR intent and marriage evidence) for her to stay in Canada while waiting for PR.

Yes that's right. And remember, DO NOT mention her overstay!
Good luck!

 

[hodge4394]

Hi Again,

We finally have my wife's new passport, FBI record check and medical scheduled for Weds. Once that is complete we are ready to file.

We were given the advice to apply Outbound due to my wife's overstay and the ability to travel back to the States and get her a legal visitors record once I have been approved to sponsor.

The questions I have is completing the outbound Sponsor/Spouse Questionnaire. Do we honestly state our cohabitation? She has been here since her first visit in 2005. The questions are then directed as keeping contact and visiting her? We are really torn between inbound/outbound at this point and can't figure out how to properly declare her overstay...

I hope you're still out there Robsluv.....

 

[hodge4394]

Can anyone tell me if it matters which medical form we use this weds. The inbound and outbound are different and we haven't yet decided which way we will apply. Should we take both?

 

[pinklady]

You should apply outland - much faster.
You will need to decide before the medical anyway.