Immigration Corner | I’ve overstayed in the USA, can I get sponsored to Canada?

Dear Miss Powell,

I am married to a Canadian. I visited the USA on a visitor’s visa during Christmas of 2019, but my mom got ill and I stayed to take care of her. Then there was the lockdown, and so I remained. During the lockdown, I linked up with an old friend who is now a Canadian citizen. He has visited me several times in the USA, and we got married the last time he was here. I was hoping that my mother could sponsor both of us, but my mother and my husband think it’s better that he sponsors me to go to Canada.

Can my husband file for me to live in Canada? I know I’ve overstayed in the USA and I’m worried that this is seen as a criminal offence. Does that mean that he can’t sponsor me? I look forward to hearing from you, as we are both anxious about this. Thank you.

WT

Dear WT,

The Immigration and Refugee Protection Act (IRPA) and Regulations of Canada state that a Canadian citizen may sponsor a foreign national who is a member of the family class to live permanently in Canada as a permanent resident, provided that both the sponsor and the applicant meet all the necessary requirements.

WHO CAN SPONSOR?

A Canadian citizen, permanent resident or a native person registered as an Indian under the Indian Act may sponsor a spouse, conjugal or common-law partner, if he is over 18 years old and able to prove that he qualifies to be a sponsor.

You should discuss the details with your spouse. First, you should ask your sponsor the following questions:

1. Has he sponsored anyone else within the last three years?

2. Do you have outstanding alimony or child support payments?

3. Have you declared bankruptcy and haven’t been released from it yet?

4. Have you received social assistance for reasons other than being disabled?

5. Do you have outstanding immigration loan or made late payments or missed payments?

6. Are your tax returns up to date? Do you have the latest Notice of Assessments?

7. Have you sponsored another relative in the past and didn’t meet the terms of the sponsorship agreement?

8. Are you in prison or have been in prison?

9. Were you convicted of a violent crime?

10. Have you committed any offence against a relative? If so, what was the offence? If there was an offence, how long ago was this? If so, was there a pardon or record suspension?

If your husband says yes to any of the above, then it is best that you both contact an immigration lawyer to discuss how to overcome any challenges, if possible

WHO CAN BE SPONSORED?

Like your spouse, you need to meet the requirements of Immigration, Refugees and Citizenship Canada by proving that you are admissible to Canada. You will need to pass the medical and security checks by submitting a police report from your home country and the USA.

This means that individuals who have been convicted of a crime in another country are inadmissible to Canada. Section 36(2)(c) of the IRPA states that a foreign national is inadmissible to Canada on grounds of criminality for committing an act outside Canada that is an offence in the place where it was committed and that, if committed in Canada, would constitute an indictable offence under an act of Parliament, or which a term of imprisonment of more than six months has been imposed.

You indicated that you entered the USA legally but have since overstayed due to the illness of your mother and the pandemic. I am assuming that you did not make an application to extend your time in the USA, and that you are now deemed to be in breach of the terms of your visa and the USA immigration laws. Although overstaying is not a good thing, that alone does not mean that you would be deemed a criminal, or that you have a criminal record.

Undocumented presence alone is not deemed a violation of the USA federal criminal law. However, if you were forcibly removed by the USA authorities and returned without formal authorisation, then you would have committed a criminal offence and would be deemed inadmissible to Canada.

Therefore, based on the information that you have presented, overstaying your visa to the USA, alone, is not deemed by the USA as a criminal offence. Canada will not deem that you have a criminal record, and so you will not be deemed as inadmissible if your spouse sponsors you. The key is to not withhold this information when you apply, as if you do, then you can be banned from Canada for a minimum of five years.

Deidre Powell is a lawyer, mediator, and notary public in Canada. Find her on Facebook, Instagram or Twitter. Call or WhatsApp 613-695-8777 to book a telephone or Zoom meeting.