Fiance overstayed in USA, where we met. Is PR out of the question?

[sbott]

Basically the title. My fiance and I have been dating for a year and a half. I am a Canadian, she is Mexican. We plan to get married soon and apply for PR.

The issue is, for part of our relationship we were both in the USA. She had entered legally but overstayed for 9 months. I am absolutely terrified that once we get married and file for PR it will be rejected on this basis. We are both extremely stressed and scared and would appreciate any feedback or advice on this matter. Thank you.

 

[Ponga]

Basically the title. My fiance and I have been dating for a year and a half. I am a Canadian, she is Mexican. We plan to get married soon and apply for PR.

The issue is, for part of our relationship we were both in the USA. She had entered legally but overstayed for 9 months. I am absolutely terrified that once we get married and file for PR it will be rejected on this basis. We are both extremely stressed and scared and would appreciate any feedback or advice on this matter. Thank you.

Not at all! An overstay in another country does NOT automatically disqualify a person from being sponsored. She may have issues when returning to the U.S., since they are not as forgiving as Canada would be, had she overstayed here.
https://www.alllaw.com/articles/nolo/us-immigration/reenter-overstay-tourist-visa.html

Overstaying by 180 to 364 days can result in a bar on reentering the United States for three years; overstaying for 365 days or more can result in a ten-year bar on return.


You say that she overstayed by 9 months, but...was she living with you? If so, had she been living with you prior to that (for at least 3 months)? If so, you would be eligible to apply now as she would be seen in the eyes of IRCC as your common-law partner. Even though you are no longer living together. It is a bit more work on your part, having to show proof of a one year cohabitation along with some evidence of a genuine conjugal type relationship, but...it gets the `ball rolling' sooner than waiting until you are married. Some here will suggest waiting since common-law is a slightly higher bar in terms of proof, whereas a marriage does not require quite as much. It's always up to the couple to determine which works best for them; sooner versus a bit easier.

Good luck and...try to breath. You got this!

 

[sbott]

Thank you so much for your response, we are a bit less concerned now and will certainly be seeking legal counsel to be as thorough as possible. Unfortunately, she didn't live with me in the USA. She will be coming to Canada with me in November, where we will be living together to establish common law after one year, although there is a good chance we will be married before then and apply for PR afterwards.

 

[scylla]

Thank you so much for your response, we are a bit less concerned now and will certainly be seeking legal counsel to be as thorough as possible. Unfortunately, she didn't live with me in the USA. She will be coming to Canada with me in November, where we will be living together to establish common law after one year, although there is a good chance we will be married before then and apply for PR afterwards.

Just make sure she declares the US overstay in her eta application.

 

[canuck78]

Thank you so much for your response, we are a bit less concerned now and will certainly be seeking legal counsel to be as thorough as possible. Unfortunately, she didn't live with me in the USA. She will be coming to Canada with me in November, where we will be living together to establish common law after one year, although there is a good chance we will be married before then and apply for PR afterwards.

Unfortunately there aren’t any guarantees she will be able to enter Canada as a visitor especially given her overstay. Even though she is visa exempt you can still be denied entry to Canada or given a limited time to visit. Entry if she is a PR is very different than entry as a visitor

 

[sbott]

@scylla we will absolutely be honest about it.

@canuck78 yes we figured. We consulted with an immigration attorney and mentioned all of this. The conclusion was that since she had previously been a student here for a year, has a current valid visitor visa, and will be flying in from Mexico, there shouldn't be any issues with her getting into Canada initially. Of course nothing is a guarantee but all we can do is hope.

 

[scylla]

@scylla we will absolutely be honest about it.

@canuck78 yes we figured. We consulted with an immigration attorney and mentioned all of this. The conclusion was that since she had previously been a student here for a year, has a current valid visitor visa, and will be flying in from Mexico, there shouldn't be any issues with her getting into Canada initially. Of course nothing is a guarantee but all we can do is hope.

Has she applied for the eta yet? If not, do that now. The US overstay makes her application non standard and you can expect long processing times. Also a much lower chance of approval.

 

[sbott]

@scylla she already has her ETA, she has had it since before entering the USA and it's valid until 2025

 

[canuck78]

@scylla we will absolutely be honest about it.

@canuck78 yes we figured. We consulted with an immigration attorney and mentioned all of this. The conclusion was that since she had previously been a student here for a year, has a current valid visitor visa, and will be flying in from Mexico, there shouldn't be any issues with her getting into Canada initially. Of course nothing is a guarantee but all we can do is hope.

Not sure I follow the logic. If the overstay was after studying in Canada I don’t know if that would really help. This is especially the case if you aren’t married and your partner doesn’t have any ties to their home country.

 

[sbott]

Not sure I follow the logic. If the overstay was after studying in Canada I don’t know if that would really help. This is especially the case if you aren’t married and your partner doesn’t have any ties to their home country.

The overstay was in the USA, not Canada. I have been working in the USA (legally) and she has been here with me, albeit not living together and her of course overstating. She also has a house in Mexico, so she has ties to Mexico. The relevance of those details was to explain that she has always maintained legal presence in Canada, and that her coming to Canada for a visit is not something particularly questionable or out of the ordinary given her valid ETA, her previous status, her ties to the country through friends, etc. At least this is what we were told.

If her overstay was in Canada, yeah it would definitely be a different story.

 

[sbott]

@canuck78 To piggyback, following up on what we were told: the overstay in the USA won't really be something known to Canada presumably until we disclose it during PR, since she left willingly and wasn't deported and whatnot. We were told that her flying from Mexico City to Canada could of course not go smoothly as with any entry to a foreign country but that this isn't much of a concern as there are no immediate red flags raised by her visit. Were we misled?

 

[canuck78]

The overstay was in the USA, not Canada. I have been working in the USA (legally) and she has been here with me, albeit not living together and her of course overstating. She also has a house in Mexico, so she has ties to Mexico. The relevance of those details was to explain that she has always maintained legal presence in Canada, and that her coming to Canada for a visit is not something particularly questionable or out of the ordinary given her valid ETA, her previous status, her ties to the country through friends, etc. At least this is what we were told.

If her overstay was in Canada, yeah it would definitely be a different story.

Never said the overstay was in Canada so not sure what you are talking about. When was the last time she lived in her home in Mexico? If she hasn’t been living in her home in Mexico for a long time it isn’t a strong tie. Coming to Canada after recently overstaying a visa in any country that shares immigration information with Canada will create concerns. If you recently overstayed your visa in the US then there is a good chance that there may be concerns about whether you will follow immigration rules in Canada. Will you be travelling with all your possessions since you will be coming to the US back to Canada? That may also lead to problems. The amount of funds your partner has may also be a consideration.

 

[canuck78]

@canuck78 To piggyback, following up on what we were told: the overstay in the USA won't really be something known to Canada presumably until we disclose it during PR, since she left willingly and wasn't deported and whatnot. We were told that her flying from Mexico City to Canada could of course not go smoothly as with any entry to a foreign country but that this isn't much of a concern as there are no immediate red flags raised by her visit. Were we misled?

How long has she been living in Mexico after overstaying in the US or are you both currently in the US? Think you are underestimating what border agents can see. Visa length and departure information from the US should be available. Impossible to guess whether it will actually have repercussions at the border.

 

[sbott]

Never said the overstay was in Canada so not sure what you are talking about. When was the last time she lived in her home in Mexico? If she hasn’t been living in her home in Mexico for a long time it isn’t a strong tie. Coming to Canada after recently overstaying a visa in any country that shares immigration information with Canada will create concerns. If you recently overstayed your visa in the US then there is a good chance that there may be concerns about whether you will follow immigration rules in Canada. Will you be travelling with all your possessions since you will be coming to the US back to Canada? That may also lead to problems. The amount of funds your partner has may also be a consideration.

My mistake, I must have misinterpreted your earlier post then. As for me, I have never overstayed in the US. I have always been here on the appropriate visas, with the proper legal representation. I am back in Canada, because I live here. I took what I could and the rest is being shipped up to me. Hers are remaining in Mexico, at her house, where she will be in a week or so. When she visits, she is taking a carryon with essentials only. Although, even if I were returning home with all of my stuff, I'm not sure why that would raise red flags since I lived in the USA and am coming home.

 

[sbott]

How long has she been living in Mexico after overstaying in the US or are you both currently in the US? Think you are underestimating what border agents can see. Visa length and departure information from the US should be available. Impossible to guess whether it will actually have repercussions at the border.

She'll be back in Mexico for only a month before flying up to Canada separately from me. From what I'm hearing this could raise some red flags I assume. I also have no doubt that the USA has information on her, I'm going to assume for the sake of being thorough that they know to the letter her activities here.

I suppose that all we can do is keep our fingers crossed and form a contingency plan.