We’ve gotten quite a few messages from people who are currently living in the US with undocumented status. With the change in the political climate in the US and the fact that the status of DREAMers remains unresolved, many people are hoping to find a way to legally move to Canada. People who were hoping to achieve refugee status in the US are now looking for a safer option.

Your status in the US will not interfere with your ability to apply for permanent residence in Canada, but it will make things a little more complicated. You’ll want to carefully check the information on the IRCC website and consider hiring an immigration attorney to help you. Don’t make major life decisions without carefully checking the information you’re given, as mistakes can have big consequences.

Overstaying a US visa doesn't ban you from getting PR in Canada Click To Tweet

If you’ve significantly overstayed your visa in the US (or any country) or entered the US without passing through an official port of entry, you won’t qualify for any sort of temporary visa from Canada. An illegal stay shows that you don’t wish to return to your home country, so you won’t be given a visitor visa, student visa, working holiday visa, or temporary foreign worker visa. You can, however, still apply for permanent resident status.

If you’re able to obtain permanent resident status, you’re free to work, attend school, and generally live your life as you see fit anywhere in Canada.

Most people can apply for Express Entry, spousal sponsorship, a working holiday visa, or a student visa without the need for an immigration attorney. However, if you have any sort of criminal record or if you have been living as an undocumented immigrant for several years, you will likely benefit from working with an experienced immigration attorney.

Many immigration attorneys will learn the details of your case and let you know if moving to Canada is a realistic option before having you begin the process (or pay them).

Leaving the US

While it’s unlikely that US border patrol would arrest someone who is attempting to leave the US, it is technically possible.

One thing to keep in mind is that leaving the US after remaining in the country for a year without legal status will trigger a three or ten year ban on re-entry. You can apply for a waiver from this ban, but you must do so before you leave the US. You will likely qualify for a waiver if you were under 18 when you were brought to the US, have a pending adjustment of status case, or were a victim of abuse or human trafficking.

If you own property or a business in the US, you’ll want to sell them or make a plan for continued management once you leave the country. After the ban expires, you’ll be able to return to the US like a regular tourist or apply for resident status like anyone else.

Having a child who is a US citizen will not prevent you from being deported. If you are deported, your child would have to leave the country with you unless you can show that there is a legal resident who can serve as the child’s guardian. Once your child has reached the age of legal maturity (18), they can return to the US and sponsor you for permanent resident status.

Move to Canada as a skilled worker

Assuming that you qualify for the Express Entry FSW program, it’s technically possible to apply without legal status in the US. The IRCC is unlikely to request any confirmation of your current status as part of your application.

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This is a great option for DREAMers who have a degree, at least one year of work experience, and are fluent in English or French. The process will take about six months. Once you have permanent resident status, you can sponsor your parents and/or adult children.

If you entered the US legally and had a visa that was valid for at least one year, you can apply for Express Entry from the US. If you did not, you’ll technically need to apply from another country, either your country of citizenship or a third country you can legally reside in. An immigration attorney could help you figure out the best way to manage this process.

If you’re facing deportation proceedings, we’ve heard of people successfully getting their deportation hearing delayed by providing proof that they had applied for permanent resident status in Canada. A judge may give you time for your application to be processed.

However, you may run into some complications when putting your application together.

Police certificates

Firstly, you’ll both have to provide information for every place that you have lived for the last 10 years. The IRCC will require police certificates for all countries that either of you have lived in for 6+ months since turning 18. If you indicate on your application that you have been living in the US, then you’ll have to provide a FBI background report.

To get your fingerprints, you’ll need to show a current, valid photo ID. When we applied, we got our fingerprints done through the NYPD, but it’s also possible to do this without going through local law enforcement. I found some reports of other people that have gotten fingerprints in the US with undocumented status who didn’t have any issues with this part. The only way to avoid the FBI background check is if neither you (nor your spouse) have been living in the US for 6+ months since turning 18.

If your application does not indicate that you have been living in the US for at least 6 months, then your application will go through the visa office in your home country. Some applicants are required to attend an in person interview at a Canadian visa center as part of the application process. We didn’t have to do this step, but there’s no way to know if you’ll be asked for this or not. If needed, these interviews take place in whichever country you indicate that you currently reside in.

Job verification

Your application will have to include information about each job that you have had for the last 10 years. You’ll also have to provide letters of employment from each employer.

This may prove difficult if you were working under the table. However, you do not need to provide pay stubs or tax returns, only a letter from your employer. At the very least, as the primary applicant, you’ll need letters to verify the qualifying NOC work experience you have that counts towards the FSW program.

Marry a Canadian (or be common-law)

The CIC frowns upon fake marriages, so they’re not going to be thrilled if you met your beloved on Maple Match.

However, the US is full of dual citizens (and people with permanent resident status). If you marry one (or live with one for a year and are in a serious relationship) they can sponsor you for permanent resident status.

TORONTO - NOVEMBER 22: People, irrespective of their age and religion holding signs and banners during a solidarity rally to welcome Syrian refugees to Canada on November 22, 2015 in Toronto,Canada.

arindambanerjee / Shutterstock.com

Move to Canada as a refugee

It’s unlikely that people who are undocumented in the US would qualify for asylum based on their experience in the US. However, some people fled their country of origin for reasons that would qualify them for asylum in Canada.

This is a complicated situation, since technically people are required to apply for asylum in the country they first enter due to the Safe Third Country Agreement. There are limited exceptions, but it’s likely that your refugee claim will not be heard if you enter the country from the US border unless you have a family member already living in Canada.

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In order to get around the Safe Third Country Agreement, you can apply from within Canada at an IRCC office. This is why there are so many stories about people crossing the border illegally, intending to be arrested by the Mounties on the other side. If you arrive at a Canadian airport, it does not matter if you passed through the US first.

Another complication is the amount of proof required in an asylum application. It’s an incredible challenge to provide documentation of some situations and to show that you still face danger if you returned to your country of origin.

You can apply for asylum at the port of entry in Canada or at an IRCC office. You can apply for refugee status from outside Canada if a group sponsors you. If your case is accepted, you’ll be able to work, go to school, and access basic healthcare while your application is being processed.

You can learn more about the process in the Refugee Claimant’s Kit from the Immigration and Refugee Board of Canada.

CanadaVisa has a helpful Refugee Status FAQ.

Thankfully, there are organizations that will help asylum seekers. Once you arrive in Canada, local nonprofits can provide housing assistance, counseling, career help, and community support.

If you are from certain countries, your asylum application will be reviewed quickly. These designated countries are less likely to have legitimate refugees. If you are denied asylum, you’ll be deported.

Other options

If moving to Canada isn’t an option for you, one US/CA immigration lawyer suggests looking into Antigua. For $150k you can get full citizenship within 12 weeks. While that is a large amount of money, if you own a home in the US, you can sell it to raise the necessary funds. After a year of living in Antigua as a citizen, you may become eligible to apply for a Canadian immigration program.

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