Am I here legally?

[ray092684]

This might sound like a stupid question but it's bothered me for a while now.  

I'm an american citizen.  I came to canada to visit in March of 2005.  I crossed the border by car in Detroit-Windsor.  Since being here I no longer wish to return to the U.S.  At least not to live there.  I have been here ever since.  I also now have a little boy with my fiancé who is a canadian citizen.  For the past year I have been working cash paying odd jobs whenever I can get them to try to save money to apply for citizenship.  Is it legal for me to still be here after this long?  And what is the first step I should take for getting permenant residence?

[gentlespirit512]

At this point, no, you're not here legally. As a US citizen, you could stay up to 6 months, then you would have to leave the country or apply for an extension of your visitor status. You could apply for restoration of your status if it had been less than 90 days since your 6 months expired, but it has been longer than that. Luckily, you can apply for immigration (PR comes before citizenship) while being out of status if your fiance sponsors you. I assume you've been living together for the entire time, so you could apply as common-law. But if you're planning to marry anyway, it might help to do so before applying. You still have to prove your relationship, but hopefully a baby would help to do that.

Your best bet is to apply, wait for AIP (Approval in Process), which takes approximately 6-7 months, then apply for a work permit to put yourself back in status before you're accepted for permanent residency. You have to be in status before you can be approved. I don't recommend leaving the country and coming back in, because there are no guarantees you'll get back in, especially if your fiance travels with you.

You also will need a passport for them to stamp at the end of the process, and as a US citizen, even though we can travel across without one, they still require a passport to stamp.

I've been through this--actually still in the middle--and I'm thankful for forums like these. You might want to check out roadtocanada.com. My username is the same on there as well.

Hope this helps!

[gentlespirit512]

Also, please be careful working odd jobs that pay cash. We can't legally work here until we get our WP (work permit), and under the table work could be construed to go against that. I know you're trying to save up to apply, but everyone I've talked to has advised not to do that.

Better to be safe than sorry....

[ray092684]

So if I'm not here legally do I risk being kicked out of the country?

[gentlespirit512]

According to what I've been told, you would be at risk, but not necessarily high on the list of priorities for being kicked out. Supposedly, if you get your application in before Border Services gets to you, you should be safe unless you've committed some other kind of offense.

Is there any kind of documentation of when you entered the country? What was your border crossing like? Did they interview you or just wave you through? If you're not in their system, it will take even longer for them to catch up to you. But again, you are at risk. Someone could report you, I guess.

Are you anywhere close to being able to apply?

[BCbound]

You are definitely at risk.  You are no better off than an illegal Mexican worker in the US.  Get caught and you will most likely be deported and will have NO CHANCE of being accepted back into Canada.

You need to apply now for PR status as a common-law couple.  You should not work until that process is concluded.  About 6-12 months.

What I am not sure of is if you can appply having already gone past the legal limit of your stay.  I think you may have had to apply for an extension before now and not having done so, be be ineligible to apply for PR status.

I would strongly advise you to consult an Immigration consultant immediately.

[gentlespirit512]

Yes, you can apply for permanent residency when you are out of status. There was a change in the rules in Feb. 2005 that allows this. However, you must get back into status at the earliest possible time. That would mean that when you receive AIP (approval in process), which would be 6-7 months after your application is received, you should apply for an open work permit. Actually, since you're out of status, you must send the open work permit in at the same time as your PR application and attach a note asking that they process the work permit when you are eligible for it. That would be your best plan. If you leave the country, you're not guaranteed re-entry. Then your only option is to apply out of Canada.

Here is a link to a column from an immigration lawyer on this issue. Hope it helps!

http://www.metronews.ca/column_immigration.asp?id=13980&cid=3251