Living in Canda--not a citizen

[menina 50]

I am asking this question for a friend. He is living in Canada with an expired visa and would like to start the K1 process. His fiance is the American citizen. He would like to know if he can remain in Canada while he is waiting for the process to be complete. I have advised him to return as soon as possible to his home country to avoid any problems with the overstay. Also, when completing the forms and listing addresses for the previous 5 years, he will need to list Canada. Will this raise any red flags for USCIS? He does have residence in his home country, so the mailing address can be used there to receive information. Any advice? Thanks!

[Kathryn41 3,205]

If he had legal status in Canada - on a student visa or a work visa or as a permanent resident - he would have no problems processing the K-1 visa through Canada. As he does not have legal status in Canada it is unlikely he would be able to process the visa through Canada. Even if they did accept this he is running the risk that he would be discovered and deported from Canada and thus have to go through a transfer of the file from Canada to his home country. Is he able to extend his visa? (What type of visa is it, btw). It would have to be valid for at least a year because that is what K-1s through Canada are currently taking when you count in the approximately 5 to 6 month wait for an interview at the US Consulate in Montreal (it is faster if he is on the West Coast as he would then go through the Consulate in Vancouver).

His overstay in Canada isn't going to be a problem with US authorities - it is just a problem with Canada. He will probably not be eligible to be processed in Montreal since he has no legal status in Canada now.

He will have to list Canada on the application form as one of the places he has lived for more than 6 months since turning 16, and he will need to get an RCMP or police clearance record stating he has no criminal record in Canada. If he has no criminal record this is something he could get done before he returns to his home country by doing a Canada wide name check at a local police station or RCMP post. If he leaves Canada he has to obtain a fingerprint check and that definitely takes much longer to get. The name check should cover up to the time he leaves Canada or as close to it as he can make it as it needs to be 'recent' for when he has his interview.

It may even be faster for him to get a K-1 from his own country than it is from Canada so what he gives up in convenient access to the US he may gain in processing time.

Edited November 27, 2010 by Kathryn41

[menina 50]

If he had legal status in Canada - on a student visa or a work visa or as a permanent resident - he would have no problems processing the K-1 visa through Canada. As he does not have legal status in Canada it is unlikely he would be able to process the visa through Canada. Even if they did accept this he is running the risk that he would be discovered and deported from Canada and thus have to go through a transfer of the file from Canada to his home country. Is he able to extend his visa? (What type of visa is it, btw). It would have to be valid for at least a year because that is what K-1s through Canada are currently taking when you count in the approximately 5 to 6 month wait for an interview at the US Consulate in Montreal (it is faster if he is on the West Coast as he would then go through the Consulate in Vancouver).

His overstay in Canada isn't going to be a problem with US authorities - it is just a problem with Canada. He will probably not be eligible to be processed in Montreal since he has no legal status in Canada now.

He will have to list Canada on the application form as one of the places he has lived for more than 6 months since turning 16, and he will need to get an RCMP or police clearance record stating he has no criminal record in Canada. If he has no criminal record this is something he could get done before he returns to his home country by doing a Canada wide name check at a local police station or RCMP post. If he leaves Canada he has to obtain a fingerprint check and that definitely takes much longer to get. The name check should cover up to the time he leaves Canada or as close to it as he can make it as it needs to be 'recent' for when he has his interview.

It may even be faster for him to get a K-1 from his own country than it is from Canada so what he gives up in convenient access to the US he may gain in processing time.

Okay he is planning to return to his home country and complete the process from there. However when he goes to do the police clearance, will he have a problem since he overstayed his visa. (in Canada)?

[Kathryn41 3,205]

I don't think he should. The RCMP/police check is doing a name check for criminal activity - not immigration status. He should tell them it is for US immigration purposes and that he is leaving Canada shortly so would like to have it before he leaves. He should be fine. It can take anywhere from a few days to a few weeks depending on the place he gets it done - there doesn't seem to be a standard time frame nor even a standard form. It does need to state that it was a Canada wide name check and when he fills out the US immigration applications he can show by the dates that he was actually in Canada when he applied for the form so they should accept it as valid and not require him to get a fingerprint check as well.

[menina 50]

I don't think he should. The RCMP/police check is doing a name check for criminal activity - not immigration status. He should tell them it is for US immigration purposes and that he is leaving Canada shortly so would like to have it before he leaves. He should be fine. It can take anywhere from a few days to a few weeks depending on the place he gets it done - there doesn't seem to be a standard time frame nor even a standard form. It does need to state that it was a Canada wide name check and when he fills out the US immigration applications he can show by the dates that he was actually in Canada when he applied for the form so they should accept it as valid and not require him to get a fingerprint check as well.

Thank you for your advice. As he is concerned about causing a problem with his overstay, he wants to wait to return to his home country to request the clearance. Do you know how he would go about doing that?

[Kathryn41 3,205]

Here is the information he needs to know to get a criminal record check from the RCMP from outside of Canada: http://www.rcmp-grc....cj/c216-eng.htm

He should know that the processing time is a matter of months, not weeks or days, when requesting a fingerprint check. I still think it would be a good idea for him to get the name check from within Canada while he has the option and if he wishes, do a follow up fingerprint check from outside of the country. He can go to his local police office for the Canada wide name check and say it is for US immigration purposes.

Here is the link to more information on the criminal record fingerprint check: http://www.rcmp-grc....mpr-faq-eng.htm

Your friend will also find the links included here on VJ of use to him. They explain the different requirements: http://visajourney.c...ndex.php/Canada

At the very least, your friend should try to obtain the necessary fingerprint form before he leaves Canada as the original needs to be returned by mail in order to start the process.

Edited November 27, 2010 by Kathryn41

[Kathryn41 3,205]

Actually, upon checking the requirements from the US Consulates in Canada for processing applications the individual needs to be legally present in Canada and provide a copy of the documentation, valid for at least 6 months, proving their legal presence, so with an expired visa your friend would not be eligible to process through Canada at all, so it is good that he is deciding to go home and apply from his home country.

Please remind him that he must be honest with all of his information to US immigration, so if he is asked at any time in any way if he had overstayed his visa in Canada or what his legal status was in Canada - which may or may not come up during the interview about how and where he and his fiancee visited - he must be honest. The overstay in Canada will not hurt his application to the US - but lying about the overstay or trying to hide or misrepresent that information definitely will be a problem. The US is only concerned about overstays in the US and not in other countries. He has nothing to gain and everything to lose by trying to hide or misrepresent the visa overstay in Canada.

Edited November 27, 2010 by Kathryn41

[menina 50]

Actually, upon checking the requirements from the US Consulates in Canada for processing applications the individual needs to be legally present in Canada and provide a copy of the documentation, valid for at least 6 months, proving their legal presence, so with an expired visa your friend would not be eligible to process through Canada at all, so it is good that he is deciding to go home and apply from his home country.

Please remind him that he must be honest with all of his information to US immigration, so if he is asked at any time in any way if he had overstayed his visa in Canada or what his legal status was in Canada - which may or may not come up during the interview about how and where he and his fiancee visited - he must be honest. The overstay in Canada will not hurt his application to the US - but lying about the overstay or trying to hide or misrepresent that information definitely will be a problem. The US is only concerned about overstays in the US and not in other countries. He has nothing to gain and everything to lose by trying to hide or misrepresent the visa overstay in Canada.

Thank you. That makes a lot of sense. I assume that if the name check is not going to be ready before he leaves, he can just have it sent to him?

[Kathryn41 3,205]

Thank you. That makes a lot of sense. I assume that if the name check is not going to be ready before he leaves, he can just have it sent to him?

He should see if they are willing to mail it to an out of country address. He may need to arrange for an in-country address and someone to forward it to him. Hopefully they won't require an in-person pick up or else he will need to authorize someone to pick it up. This is something he can discuss with the office when he goes to get it done.

[menina 50]

He should see if they are willing to mail it to an out of country address. He may need to arrange for an in-country address and someone to forward it to him. Hopefully they won't require an in-person pick up or else he will need to authorize someone to pick it up. This is something he can discuss with the office when he goes to get it done.

Thank you! Your help has been invaluable!

[Kathryn41 3,205]

You're welcome . Good luck to your friend.

[JlovesA 109]

As a former RCMP employee who processed criminal record checks, I would advise your friend to call a few different police stations (RCMP, provincial and municipal, everything nearby) and ask how long it'd take. The detachments I worked in had a turn around time of only 4-5 business days but if it was an urgent matter, I would just do the check on the spot. So if your friend is leaving very soon, I really recommend calling a few places and seeing what they can do for him. Be aware the record check does NOT have to be from the RCMP, as long as it is a federal record search.

[HeatDeath 430]

He may find, calling around to various RCMP detachments, that rural or semi-rural ones are a lot less busy and have much quicker turnaround times. I had mine done in Steinbach, Manitoba [About 30 miles outside Winnipeg. I was working there as a teacher, commuting in from Winnipeg] and there were able to do mine on the spot, with no turnaround time at all. Biggest inconvenience was that they wouldn't take cash or plastic - only a cheque or a money order, which seemed weird.

[JlovesA 109]

He may find, calling around to various RCMP detachments, that rural or semi-rural ones are a lot less busy and have much quicker turnaround times. I had mine done in Steinbach, Manitoba [About 30 miles outside Winnipeg. I was working there as a teacher, commuting in from Winnipeg] and there were able to do mine on the spot, with no turnaround time at all. Biggest inconvenience was that they wouldn't take cash or plastic - only a cheque or a money order, which seemed weird.

My detachments did CR checks for free but I think cheques and money orders make it easier for them to deposit the money into the federal account (Receiver General of Canada).

[menina 50]

Thank-you for all of the great advice everyone! You have been very helpful!