Conjugal? In NY and still married waiting for divorce.

[wally1961]

My girlfriend lives in NY state. I live in Ontario. We have been dating since April 2008. We thought her divorce would be over a long time ago. In Jan 2010 she came for a visit with all the proper paperwork, job, place of residence. They have been allowing her to come back and forth. She only works a few days per month and her place of residence is her father's. We were hoping to be married by now, but the divorce is getting drawn out. It has been over 8 months now and we have had very little problem crossing the border. We thought if the divorce doesn't finalize by year end we'd be able to apply as common-law status. They have been getting a little stricter at the border in the past couple months. This past weekend she was given a two week visitor visa. We were told by the guard that we need to do something different or she could get denied entry and possibly disallowed entry for a year.

Does this give us the opportunity to apply for conjugal status? Giving us reason that we can't cohabit?

She has one of my credit cards in her name and is named beneficiary on my life insurance since early 2009. I have paid her lawyers bills for the past couple years. I support her fully less the few days a month that she works. Prior to her extended visit in January, I had visited at least bi-weekly. We have all kinds of documentation; phone bills, pictures, whatever is required to show that we have been in this relationship for well over a year.

What are our odds of being accepted?

Thanks in advance

Gerry

 

[wally1961]

Any response would be helpful.

thanks

 

[giggles1985]

Someone correct me if I'm wrong but I believe that you can apply for conjugal relationship while still married to someone else. The evidence you have sounds good. I don't think anyone can guarantee that it would be enough but you could certainly try it...

Not sure there is much advice to offer other than try it and see or wait for her divorce to be final and get married.

 

[elkan]

This is what it says in the OP 2 Manual, hope this helps! (page 34)

5.49 What happens if the conjugal partner (principal applicant) is married to another person?
Persons who are married to third parties can be considered conjugal partners provided their
marriage has broken down and they have lived separate and apart from their spouse for long
enough to establish a conjugal relationship with another person. In this case, they must have
separated from the legally married spouse and established a conjugal relationship with the
conjugal partner and been in that relationship for at least one year. A conjugal relationship cannot
be legally established where one or both parties continue in a conjugal relationship with their
spouse.
Establishing a conjugal relationship takes a period of time; it is expected that the date from which
the conjugal relationship exists will be some reasonable time after separation from the legally
married spouse has occurred. Although a couple in a conjugal partner relationship might have
known one another while one or both was still with their legally married spouse, they could not be
in a conjugal relationship until there was a separation from the legally married spouse and the
new conjugal relationship established. See also What happens if a common-law partner (principal
applicant) is married to another person, Section 5.38 above.
The conjugal partner must satisfy an officer that they are separated from and no longer cohabiting
with the legal spouse. Evidence may be in the form of a signed formal declaration that the
marriage has ended and that the person has entered into a conjugal partner relationship. An officer may require that the person produce other written evidence of a formal separation or of a
breakdown of the marriage. Acceptable documents include a separation agreement, a court order
in respect of custody of children identifying the fact of the marriage breakdown, documents
removing the legally married spouse(s) from insurance policies or will as beneficiaries (a “change
of beneficiary” form).
In the above circumstances, the legal spouse of the principal applicant will not be examined and
therefore is not a member of the family class. This spouse cannot subsequently be sponsored by
the principal applicant [see R117(9)(d)].

 

[RobsLuv]

We were in a similar situation and this is what we learned. Conjugal very seldom works for US/Canada couples because there is not a significant immigration barrier, and it doesn't sound like the two of you have reason to fear persecution due to the nature of your relationship.

Not being able to marry because a divorce is not yet finalized is not grounds for conjugal qualification - and I doubt that you'd be able to prove common-law qualification (one year cohabitation) based on her frequent visits to Canada. Sounds to me like you have no choice as far as applying to sponsor her until you get married. As far as the border issue - this is a very real threat that they would disallow her entry for a year. What they mean is that she is making too many trips and spending too much cumulative time in Canada without being able to apply for status. I understand, and you understand, that you just want to be together - but they don't care. We were once put in the position of going to the border to extend my temporary status. We had managed to qualify as common-law partners by living together for more than a year on either side of the border - but his job was here and once we qualified, we wanted to stay exclusively in Canada to wait out the processing of our application. We went to the border the weekend before we were going to submit the PR ap, while I still had valid temporary status, and I was refused re-entry by an absolute witch of an IO who said we did not qualify as common-law partners because his divorce was still a few weeks from being finalized. She sent me packing and told me not to dare try to re-enter Canada until we could prove we'd married.

Bottom line: those people at the border can do whatever they feel like and if they believe she is spending more time in Canada than out, they can refuse her entry at any time and they can disallow her entry for up to two years . . . and that wouldn't be lifted early just because you got married and she was approved for PR. Seems to me it's safer for your future plans if she backs off from Canada for a bit and maybe you go the other direction for awhile - at least until the divorce is done and the two of you can get married. Then you can accompany her into Canada and ask that she be allowed to stay with you while waiting to be finalized. Read more about this at the Visiting tab (about Visitor Records) at US2Canada . . . and be sure you apply to sponsor her via the outland application process, even if she is going to be staying with you as a visitor during processing. It is almost never in the best interest of a US citizen to apply for spousal PR via the inland route.