What Happens If I Overstay My Visa in Canada?

If you are a migrant currently in Canada, whether as a visitor, business person, worker, student, or for any other reason, it is vital that you take action before your visa expires. Depending on your circumstances, you may need to apply to extend or renew your visa, apply for a different type of visa, apply for permanent residency, or leave the country. There are some situations that may make it impossible to leave before your visa expires, including illness or injury, where a person is a victim of domestic abuse, and most recently due to COVID-19 travel restrictions. In this article, we will explain the implications of overstaying in Canada if your visa has expired and some possible options you may have available.

What happens to over stayers in Canada?

It is extremely common for migrants in Canada to believe that if their visa has expired, the best course of action is to say nothing in the hope that the immigration authorities will not notice. This is entirely mistaken, simply because the Canadian immigration authorities hold electronic records of who is in the country, their visa type, and the period of leave granted. This means that over stayers will be challenged at the border when leaving Canada and/or trying to re-enter at a later date.

The main risk of overstaying a visa in Canada is that you may be deemed ‘inadmissible’; this means that you may be:

• denied a visa or an Electronic Travel Authorization (eTA), or;
• refused entry to enter Canada in the future, or;
• removed from Canada, or;

A person may be inadmissible for a number of reasons, including failure to comply with the Canadian Immigration Refugee and Protection Act (IRPA). The IRCC rules state that failure to comply with IRPA includes:

• temporary residents who don’t respect the conditions of their stay—for example, they stay longer than allowed, or work or study without the proper permits
• permanent residents who haven’t lived in Canada for the required amount of time
• people who have previously been deported and try to enter Canada without written authorisation (In some cases, you may need an Authorisation to return to Canada (ARC) in order to be admitted to Canada)

What can I do if I am an over stayer in Canada?

You must take action if you are an over stayer in Canada. By doing so, you can reduce or mitigate the risk of any adverse action being taken against you now and in the future (e.g. if you wish to come back to Canada). It is advisable to speak to an immigration lawyer who can explain your options and recommend the best course of action given your background and future plans. They will work to determine if you have a valid reason for overstaying and can help you to provide the necessary documents and evidence to support your case. Depending on the circumstances, you may be able to extend your visa, be allowed time to leave the country without penalty or be permitted to apply for a new visa.

There are existing ways in which it is possible to regularise your immigration status as long as it has been less than 90 days since the expiry date; in this case, it is possible to apply to restore the visa. IRCC states that there is no guarantee of this being extended, but with the correct advice and approach, this should be possible in most situations. To restore your visitor status, you will need to apply to extend your stay as a visitor – this is done online. IRCC advises that over stayers need to ensure they:

• Select Restore my status as a visitor (under section 3 at the top of the form).
• Provide full details of your situation and the reason you stayed in Canada longer than allowed (under section 2 of the background information).

There is also a fee of $200 to restore your visa. Unfortunately, this cost is payable for each family member who has lost their immigration status in Canada.

The guidance explains that it is possible to restore your status as a visitor, student or worker within 90 days of losing it because you:

• You stayed in Canada longer than the period authorised for your stay (but not longer than 90 days).
• You changed employers, location of employment, or type of work (occupation or level of responsibility) before getting a new work permit.
• You changed the type of studies, educational institutions, location of studies, or times and periods of studies without applying to change these conditions on your study permit if they were specified on your study permit.

As long as you complete this process fully and correctly within the 90-day limit, you will be able to secure a new visitor visa or a new study or work permit and restore your temporary resident status.

Can I apply to restore my status in Canada if my visa expired over 90 days ago, and I have been impacted by COVID-19?

Unfortunately not; the latest guidance published by IRCC states that “As of September 1, 2021, you can no longer restore your status if it expired more than 90 days ago or use your letter of introduction to request a work permit in Canada”. This is why it is so important to fully utilise the 90-day window to apply for a restoration of status and not exceed this timescale.

Wrapping up

It is essential to take action if your visa or permit for Canada is due to or already has expired. IRCC is generous in offering a 90-day window to restore your legal immigration status, after which it can become much trickier to regularise your position. That said, if you have overstayed beyond 90 days, speak to an immigration lawyer as soon as possible, as they will work to determine the best course of action and seek a resolution with the immigration authorities in Canada.