Overstay consequence for Canadian citizen

[dechen 0]

My sister has gone to the US over a year and half ago for medical treatments. During that time, her health has not really improved enough for her to come back to Canada and she also has not gotten an extension, since Canadians have no visas. I believe Canadians are allowed six months a year stay in the US, but as there is no visa and no stamp of entry, is she then in overstay? Can she be deported? What could she do to fix her situation, since she is still getting medical treatments?

Also, I heard that there can be a bar of entry in the US after she returns to Canada and if she tries to re-enter. Is there a way to avoid that?

Thanks a lot!

[sciencenerd 56]

My sister has gone to the US over a year and half ago for medical treatments. During that time, her health has not really improved enough for her to come back to Canada and she also has not gotten an extension, since Canadians have no visas. I believe Canadians are allowed six months a year stay in the US, but as there is no visa and no stamp of entry, is she then in overstay? Can she be deported? What could she do to fix her situation, since she is still getting medical treatments?

Also, I heard that there can be a bar of entry in the US after she returns to Canada and if she tries to re-enter. Is there a way to avoid that?

Thanks a lot!

Unfortunately, there' snot much your sister can do now. She is out of status and can be deported - the chance of that happening is small, but she doesn't have any legal status in the states right now. When she leaves the US, she will trigger a 10 year bar (assuming she's been here 18 months - 6 months with status, 12 months without). The only way to avoid this is to adjust status from within the US, which can only happen if she has a US citizen immediate relative. I'm not aware of any other options, but perhaps someone more knowledgeable will come along with additional info. Good luck to your sister.

[Kathryn41 3,205]

She should have taken care of the paperwork before she went. While she went as a visitor to receive treatment, she did have an option to apply for a specific paper visa - or an extension to the time she was allowed to be there as a visitor - based upon her medical needs. Since she failed to do this, she doesn't have the option to do this after the fact. The US requires even those who enter the country for medical purposes to have the correct paperwork, whether they are from Canada or from another country.

She is indeed in an overstay situation and is currently deportable. Yes, she has earned a 10 year ban on re-entry to the US if she leaves the US from having been in the US without legal status (after the 6 month de factor visitor visa expiry) for more than a year.

If she does have a US relative who is eligible to sponsor her for permanent residency she may not be eligible due to her medical circumstances.

She is between a rock and a hard place right now. If her medical treatments are not available in Canada and she is caught she may be able to plead her case for humanitarian consideration before an immigration judge at the deportation hearing. It will require the services of a lawyer. If the treatments are available outside of the US - especially in Canada - that option may not be feasible. How is she paying for these treatments? How is she supporting herself in the US? Her situation may be such that USCIS will view her as being an unnecessary burden upon the US tax payer as well, so she definitely needs to consider all of these factors.

You say she is not able to return to Canada but do not say how she is managing to live in the US. USCIS will look at 'need' vs 'convenience' with any plea for humanitarian consideration and if she is able to maintain a relatively normal life style (eg not hospitalized or institutionalized for treatments, etc.) she would be considered 'well enough' to travel back to Canada between treatments, regardless of how 'inconvenient' or what challenges she might face.

She may find it useful to contact an immigration lawyer to see what options she has, whether she gets deported or not. Good luck to her.

Edited March 20, 2011 by Kathryn41

[dechen 0]

Thanks Kathryn and Sciencenerd,

She has not broken any laws - simply failed to properly extend her visa. When she left Canada, she was extremely ill, even unable to walk unassisted (she was taken to the airport here and picked up at the other end) and indeed has gotten better enough in the States that she would have been able to travel back, but has not done so.

It is true that not all medical treatments are available in Canada, but even if they are, the quality of medical care in the US is much superior to that in Canada, sorry to say. And there are many more options in the US. My sister's condition and the care she has received attest to that.

As for supporting herself in the US, she has used her life savings and furthermore we got a very timely inheritance from an aunt of ours. All treatments and expenses have been paid out of pocket, as she has no access to medical insurance there.

All in all, she has spent a lot of personal money in the US, so cannot be considered "a burden" to tax payers at all. And she has also not taken up employment there.

I am very sorry to hear that there is a ten year ban; however, my sister will return in good health to Canada. So it may have all been worth it.

Unfortunately, we do not have relatives in the US. If there is no other way, I will advise her to consult an immigration lawyer, as you recommend, to see what the options are to avoid deportation or the ban.

Thanks a lot!