jennyjenjen said:
OK here goes
I left Canada to live temporarily with my fiance in California April 2013 - I overstayed my US visitor visa by a week but we both came back to Canada at that time (Oct 2013).
I was pregnant and have since had a child and we were married Feb 2015.
Now my husband has been in Canada this whole time and not left. He has overstayed his visitor status (6 months) by over 1.5 years.
What are our options?
We are planning to go back to the US in the next month but if we leave will he be denied access to come back to Canada?
Will I be allowed back in the US after overstaying for 1 week (2 years ago)?
HELP - I dont want to leave if we will never get back in together..
Thanks in advance
The U.S. and Canada see/treat those that overstay their visa very differently.
If a person overstays in the U.S., they can be banned for up to 10 years. Fortunately for you, that's not going to happen. If you had stayed 180 days or more (but less than 365 days) you would have a 3 year ban. An overstay of 1 year or more, means a 10 year ban.
A one week overstay is probably not a big deal, since you are from a visa exempt country. Here's someone that was in a similar situation that was not visa exempt:
http://www.nolo.com/legal-encyclopedia/i-overstayed-week-can-i-return-the-us-the-visa-waiver-program.html
Canada is more forgiving, but that doesn't mean that they `forget' about those that have overstayed. It's very possible that he will be denied re-entry because of his overstay. In fact, the CBSA officer could even serve him with an Exclusion Order, banning him from re-entering Canada for a year, or more.
Now...what are your plans for him to get legal status in Canada? Will you be applying to sponsor him under Family Class Spousal Sponsorship? If so...you should know that up until September 2014 a person did not need legal status to be sponsored if they were in Canada. CIC (Citizenship and Immigration Canada) updated the instruction guide for Inland applicants that
now states that legal status is required. This guide has since been updated again, and that new language remains. However, AFAIK the Public Policy that was put in place way back in February of 2005, by then Minister of Citizenship and Immigration Joe Volpe (allowing those without status to apply) has not been retracted.
What does this
really mean?
People without status are still continuing to apply, so I guess it's somewhat of a `wait and see' what, if anything, CIC is doing differently. It's obvious that their guide was updated for a reason, but perhaps it's still status quo...for now!
Some will say that your husband's best option is to submit an Outland application ASAP (while he is in Canada) and then return to the U.S. while his application is being processed. His overstay will not, in and of itself, prevent him from being approved. Once he is approved, he then returns to Canada (with his CoPR document in hand) and lands as a legal, Permanent Resident of Canada. Besides, the processing time for an American (assuming your husband is in fact a U.S. citizen) is only ~ 6-8 months now, compared to the ~ 2 years if he were to stay in Canada and submit an Inland application. Because of his overstay (which needs to be disclosed, no matter which application he chooses), there's a
chance that he could be removed from Canada, which would kill the Inland application.
Time really is your enemy now, so decide what is best for you and your family and...do it ASAP!
Good luck!
