Restore Status: Will it show as an overstay?

[Caroliner1978]

So the situation is this:

My American guy has overstayed his Visitor's by about 6 weeks. He is planning to leave on the 84th day after it expired (49 days from now).

If he applies to restore status and is approved, will it show as an overstay, and cause problems at the border in the future?
If he applies to restore status and is denied, will it show as an overstay, and cause problems at the border in the future?
If he applies to restore status, but is already gone before receiving a decision, will it show as an overstay, and cause problems at the border in the future?
If he simply leaves before the 90 days is up, will it show as an overstay, and cause problems at the border in the future?
If he simply leaves right this second, will that make the situation any better?

We know we screwed up with this, and want to try to take the best course of action, given our screw-up. Our plan is to get married as soon as we can and apply outland when we have all the proper evidence and fees gathered, but that means he will need to return to Canada to actually get married... We just want to do what we can in this scenario to make his return as little of a hassle as possible.

Thanks in advance for any insight

 

[Jalex23]

If he applies to restore status and is approved, will it show as an overstay, and cause problems at the border in the future?

No.

If he applies to restore status and is denied, will it show as an overstay, and cause problems at the border in the future?

No.

If he applies to restore status, but is already gone before receiving a decision, will it show as an overstay, and cause problems at the border in the future?

No.

If he simply leaves before the 90 days is up, will it show as an overstay, and cause problems at the border in the future?

Yes.

If he simply leaves right this second, will that make the situation any better?

Maybe, a little. Shorter overstays are generally better than longer overstays... regardless they are overstays.

We know we screwed up with this, and want to try to take the best course of action, given our screw-up. Our plan is to get married as soon as we can and apply outland when we have all the proper evidence and fees gathered, but that means he will need to return to Canada to actually get married... We just want to do what we can in this scenario to make his return as little of a hassle as possible.

Then why do you go through all these scenarios? Just apply for restoration.

You don't want ANY chances of screwing up with his PR process.... and that can be an effect of having an overstay in his profile, or worse, being denied entry for overstaying....

 

[canuck_in_uk]

If he applies to restore status and is denied, will it show as an overstay, and cause problems at the border in the future?

If he applies to restore status, but is already gone before receiving a decision, will it show as an overstay, and cause problems at the border in the future?

Yes, it will show as an overstay if he is denied restoration or leaves before the restoration app is approved. Restoration effectively retroactively legalizes a person's stay to the time they lost status. If they don't restore their status, then the time that they spent in Canada after their status expired was illegal. Whether that will cause him problems at the border, no one can say for sure.

You don't want ANY chances of screwing up with his PR process.... and that can be an effect of having an overstay in his profile, or worse, being denied entry for overstaying....

An overstay or being denied entry to Canada will have ZERO effect on the approval of a PR app. Very rarely, a person thought to be "abusing" visitor status in Canada will be excluded for a year. This means that a PR app would be put on hold until the year was up but the Exclusion Order itself would have no effect on the PR app.

 

[defintelyguru]

If he applies to restore status, but is already gone before receiving a decision, will it show as an overstay, and cause problems at the border in the future?

I am in a different, but similar situation.
I have been out of status because of a LMIA / WP refusal. I have found a new employer and have all the paperwork to ask a work permit.
Applied for restoration as visitor within the 90 days as I didn't have the new WP docs in time. I won't receive an answer on that any time soon.
And that's the problem... If restoration took a couple months that would be fine, but it's 8 months!!! When you're supposed to start a new job, that simply can't do.

So I tried to flagpole at the border, one of the agent refused to process it, and kept saying I had overstayed, and so I would probably do it again.
Other agents before seemed ok with it though. But just my luck, they left before finishing my case.

It would great to get a straight answer on the consequences of those scenarios.
I'm from a visa exempt country. And I would tend to believe my restoration as visitor would be approved.
But since I cannot wait, what will happen if I (successfully)
- flagpole
- leave Canada / re-enter from the US immediately
- leave Canada / re-enter from the US after a month
- leave Canada / re-enter from home country + US after a month
- leave Canada / apply in home country (2 months) / re-enter

I also plan, next year, to apply for Express Entry (PR). How will that be affected ?

 

[Jalex23]

- flagpole
- leave Canada / re-enter from the US immediately
- leave Canada / re-enter from the US after a month

The problem is that you already have a refusal in your record for trying to abuse the law. Did they at least let you withdraw the request for admission? Some officers offer that... and that won't be on record.

- leave Canada / re-enter from home country + US after a month

This is much better. I would do at least 3 months.

- leave Canada / apply in home country (2 months) / re-enter

Apply for what? Yeah this is better.

I also plan, next year, to apply for Express Entry (PR). How will that be affected ?

Not much.... some say nothing.... as always depends on the officer and on what is on record.


You are not supposed to be looking for work as a visitor (unless you were straightforward with your intention since the beginning). You should have left when the visit was over. You should have left immediately after the refusal was given. You shouldn't have tried to abuse the law "flagpoling".... all this will be taken into account when you try to come re-enter Canada.

 

[defintelyguru]

Ok. First, I didn't "abuse" the law. I just did what I could, despite all the bad luck, and always within the law.

Let me sum-it up.
- open work permit for 1 year
- started working
- applied to extend stay WP + LMIA (dual intent for PR)
- refused because LMIA was messed up, and after OWP already expired (I stopped working immediately)
- tried fixing things with employer... they said no... (and it took them 1 month to say it)
- applied for restoration as visitor, within the 90 days
- new employer, job offer, getting the papers ready, we're just a little over the 90 days now
- flagpole... almost successful twice, but documents missing... third one failed.

So if this what you call "abusing"...

At the border, the agent didn't process my application. So no record of it. (unless she lied)
I am still allowed to stay in Canada.

Now I need to apply for that new work permit. LMIA-exempt. Sooner the better.
I don't have anyone to support me financially. I cannot just wonder around for months. I have an apartment, plans, etc.

By the way, I have just read the Immigration Act... I haven't found any ground for being refused, except a slight concern on overstaying again.
Nothing that an explanation of how I came to this situation wouldn't suffice to convince an agent. (Should he listen to me !!!)
I am not subject to any removal, haven't any criminal or other inadmissibility issues. And it seems having applied for restoration + visitor gives me back some sort of admissibility too. (Though, it is not very clear on that...)
That would tend to support what I have experienced at the border. Some agents will do it. Some, more stubborn, just don't care.

 

[Jalex23]

So if this what you call "abusing"...

It is not me, it was the CBSA officer. Yes, he called that abusing, so he refused.

By the way, I have just read the Immigration Act... I haven't found any ground for being refused, except a slight concern on overstaying again.

Usually when people have to go to the law and say "there is nothing that says" is because they are playing on that grey area: "nothing says I can't". "Abusing the law" stands for that, it means that you haven't done anything illegal but you have used the law in your advantage and not acted "in good faith" as Canada would expect.

The CBSA officer is there for that, they look at your history and have to determine if you can be trusted.

That would tend to support what I have experienced at the border. Some agents will do it. Some, more stubborn, just don't care.

Yes, some have a tighter definition of "abusing" some are more flexible.



BTW you don't have to convince me. I am just giving you what I think was the CBSA's reason for refusal. Use it to have a more solid argument when you do whatever you have to do.

Good Luck.

 

[NHLNFL]

Yes, it will show as an overstay if he is denied restoration or leaves before the restoration app is approved. Restoration effectively retroactively legalizes a person's stay to the time they lost status. If they don't restore their status, then the time that they spent in Canada after their status expired was illegal. Whether that will cause him problems at the border, no one can say for sure.




An overstay or being denied entry to Canada will have ZERO effect on the approval of a PR app. Very rarely, a person thought to be "abusing" visitor status in Canada will be excluded for a year. This means that a PR app would be put on hold until the year was up but the Exclusion Order itself would have no effect on the PR app.

I hate to revive an old thread but figured this is easier than a new post as you have answered my question within this thread: Does an approved restoration eliminate the possible inadmissibility of "staying in Canada longer than my authorized stay"? I made a mistake which caused me to lose status but it was successfully restored; I applied for restoration one week after losing status and was approved 2 months later.

If I leave Canada for travel to my home country (USA) will they see the overstay and believe I may do it again (obviously I will not). Not sure if rules have changed since this original thread.

 

[canuck_in_uk]

I hate to revive an old thread but figured this is easier than a new post as you have answered my question within this thread: Does an approved restoration eliminate the possible inadmissibility of "staying in Canada longer than my authorized stay"? I made a mistake which caused me to lose status but it was successfully restored; I applied for restoration one week after losing status and was approved 2 months later.

If I leave Canada for travel to my home country (USA) will they see the overstay and believe I may do it again (obviously I will not). Not sure if rules have changed since this original thread.

From an IRCC standpoint, your status was legalized. However, as I said in the previous post, that does not guarantee anything at the border. CBSA see things their own way.

 

[NHLNFL]

From an IRCC standpoint, your status was legalized. However, as I said in the previous post, that does not guarantee anything at the border. CBSA see things their own way.

Gotcha. Thanks. I know nothing is guaranteed with the CBSA unless you have your PR card or a citizen.

I was curious if that aspect still existed or not and was looking for clarification!

I know they will still see all of my history and one agent will see my case differently than the one in the next booth.

Thanks for the response.