Canadian wife wants to return to Canada with children

QUESTION: My sister-in-law and brother-in-law are both Canadian.  They moved
to New York City in 1999 when my brother-in-law got a job there.  They have
since had two children.  They've recently seperated and she wants to know
her rights if she wanted to move back to Canada.  I'm unsure where to find
information about this.  Can you help?
david ingram replies:
I want to clearly tell you that she needs to talk directly and immediately
with a family lawyer in New York State.
A lot depends upon the status of her children. Has she registered them as
Canadian citizens?  If not she should go to to get her children
registered as Canadian citizens when born outside of Canada to a Canadian
Parent.  That can take a year.
Next, it depends upon her husband and his visa and any custody issues.  If
she has a restraining order or an agreement that she can NOT remove the
children from the jurisdiction of the court, she can not take them out of
the state of New York to New Jersey, let alone Canada without fear of a
kidnapping charge.
If she is there as an H4 visa holder with his H1 on an L2 with an L1 visa
holder or a TD with a TN visa holder, she has virtually NO rights.  When she
separated, she lost the right to stay in the United States and should have
returned (alone - without her children) to Canada.  If she has already
obtained a green (resident alien) card, then she is free to stay in the US
but if she leaves the US, she risks losing the right to return to the US.
Do NOT depend on "any" web site for your answer.  she needs a "GOOD" New
York State divorce lawyer to help her and likely an even  Better US
immigration lawyer to help if she does not have a green card.
An excellent Immigration lawyer to start with is Joe Grasmick.  He will give
a half hour consultation for $285.00 which is paid in advance through at
I assure you that it will be worth the money if she is there as an H4, TD,
or L2 visa holder.
If she decides not to call Joe Grasmick and get a local lawyer, make sure
she deals with someone who knows and understands Canada and its unique
relationship with the US,  They must REALLY understand Canadians.  Dealing
with someone who is a specialist on Cuba or Haiti or Great Britain is not a
solution.  They MUST specialize in Canadians as you can see at Also, it is a good idea to get someone who is a member of
the AILA (American Immigration Lawyer's Association).  Membership in this
organization means that the lawyer you are dealing with has a great number
of fellow members to trade off.  For instance, when I have a tough US /
Canada Income tax question, I call my old Ottawa partner Gary Gauvin who is
now practicing in a Dallas, Texas suburb. We have to have someone good to
trade our ideas with.
Last but not least, for an explanation of the problems that families have
when going to work in the US your sister should read "Susan's Story" in my
November 1998 newsletter.  She can find it at
I hope this helps,
But if there is any animosity or antagonism in the divorce / separation, she
has to have really good help because she has virtually NO rights as
explained in Susan's Story.  Even if there is NO animosity, she still needs
really good professional help to make sure that she does not run afoul of US
immigration law.
As an example. When one of my clients was killed in the World Trade Centre,
his wife and kids had to leave New Jersey right away because without him and
his visa, "they" had no status. It was a horrible position to be in.
David Ingram's US/Canada Services
US / Canada / Mexico tax, Immigration and working Visa Specialists
US / Canada Real Estate Specialists
Home office at:
4466 Prospect Road
North Vancouver,  BC, CANADA, V7N 3L7
Cell (604) 657-8451 -
(604) 980-0321 Fax (604) 980-0325
Calls welcomed from 10 AM to 10 PM 7 days a week (please do not fax or phone
outside of those hours as this is a home office)
email to taxman at <mailto:taxman at> <>
Disclaimer:  This question has been answered without detailed information or
consultation and is to be regarded only as general comment.   Nothing in
this message is or should be construed as advice in any particular
circumstances. No contract exists between the reader and the author and any
and all non-contractual duties are expressly denied. All readers should
obtain formal advice from a competent and appropriately qualified legal
practitioner or tax specialist for expert help, assistance, preparation, or
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Be ALERT,  the world needs more "lerts"
This from "ask an income tax and immigration expert" from
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