Illegal in the US, Canadian Spouse

[dilemma92]

Hi,

My fiancee entered the U.S. illegally 5 years ago, he was never legal in the U.S. I am a Canadian and we want to live in the U.S. as my profession comes under the TN visa category (NAFTA) and I can legally work in the U.S. and secure a green card through employment. My fiancee has police clearance and according to his lawyer, he does not have to go back to his home country (India) to apply. I wanted to ask whether he can apply for PR in Canada.. my main reason for his pr is so he can meet my extended family. Can he apply for PR while I am still in canada and we are legally married or does he have to do it while we are living together. thank you!!!

 

[scylla]

Your situation is very complex. Your lawyer should have already explained all of the below to you. If not - find a new lawyer. Yours doesn't know what he/she is doing and isn't sufficiently familiar with both US and Canadian immigration law.

He can certainly get Canadian PR status - but living in the US afterwards is not going to be possible for at least a decade.

You can sponsor him for PR while he's in the US. Once his PR visa is approved, he will have to physically travel to Canada to 'land' and official become a permanent resident (he cannot become a Canadian PR without physically traveling to Canada). However as soon as he leaves the US - he's going to be automatically banned from re-entering for 10 years due to his illegal status in that country. So he can get PR - but he then won't be able to re-enter the US for a decade. Additionally, becoming a Canadian PR or even a Canadian citizen will have no impact on the re-entry ban - it will remain in place for the full 10 years. If he attempts to re-enter the US during the 10 year period, the ban will increase to 20 years and it's possible he may even be placed in immigration detention.

Alternatively you could forget about Canadian PR, go to work in the US (while he remain in he US illegally), and get your green card status (note that you would have to be employer sponsored and this is quite a long and drawn out process. Once you have a green card, you can then look into sponsoring your spouse for a green card. Downsides of this option is that there's no guarantee you'll get a green card, this means he'll have to remain in the US illegally for quite a while longer, and sponsoring him for a green card after you get yours will have some complexities due to his status in the US.

Last and probably best option: Sponsor him for Canadian PR. Forget about working and living in the US (since he's going to be banned for 10 years) and live/work in Canada instead.

 

[scylla]

One more point to add to what I've written above... When you sponsor him for PR, his application will be processed through the visa office in India (not through the US). Sometimes an interview is required - when required, you must go in person. If he is asked to attend an interview, it will be held in India and not in the US. As soon as he leave the US to attend the interview, the 10 year ban will trigger.

 

[Alex54321]

One more point to add to what I've written above... When you sponsor him for PR, his application will be processed through the visa office in India (not through the US). Sometimes an interview is required - when required, you must go in person. If he is asked to attend an interview, it will be held in India and not in the US. As soon as he leave the US to attend the interview, the 10 year ban will trigger.

Yes, that's exactly our situation, just with different country and not 5 but 17 years in US.