abi90 said:
Hello everyone,
I have a question regarding PR card renewal, and also implications on Citizenship.
I work for a company that is headquartered in the US, but has a branch in Canada.
The Canadian company is a registered Canadian business with a BN, and this entity pays all of the required Canadian taxes. There are 6 people working along with me, and we all get T4s and pay our taxes as well.
Question: My PR card is coming up for renewal later this year, and I have spent a total of 60 days (not continuously, its broken across the last few months) in the US, as I have been called there for business. Will these be counted as staying in Canada, as I work for a Canadian business?
Thanks for your replies in advance!
-Abi
I concur in the observation by
scylla that the time in the U.S. will
NOT count toward citizenship, and I tend to agree that it probably would not count toward compliance with the PR Residency Obligation.
Relative to citizenship, even if the employer was headquartered (
based) in Canada, time outside Canada while employed does not count toward
physical presence in Canada.
Relative to potential for credit toward the PR Residency Obligation, that is a more difficult question regarding which there tends to be some lack of clarity, resulting in both some misunderstanding and some disagreement, and thus it can be somewhat unpredictable; this is in no small measure the result of how CIC has actually interpreted and applied the law, doing so with a rather narrow and strict approach.
A key factor in the scenario you describe is whether or not the employer is
(1) a Canadian business (2) based in Canada. Where the business is headquartered outside Canada (thus most likely incorporated outside Canada), there may be a question regarding someone employed by a
branch in Canada. This can be more complicated than it appears, but in some circumstances actually rather simple. In particular, "headquartered" can mean different things in varying scenarios, and might not really reflect who the employer is.
That said: Whether or not the exception technically applies, yes, that technically is what matters, but this is in practice over-shadowed by other factors, especially context including the PR's overall relationship to being resident in Canada.
Actually, the long and short of it should be relatively simple: if your employment is based in Canada, and you are making short trips abroad (to the U.S. or elsewhere; destination country is irrelevant)
per your employment, you are living in Canada and mostly in Canada and thus should have no problem meeting the PR RO of just 730 days within the preceding five years.
Or, from another perspective, 60 days in the U.S. out of the 1825 days that are relevant in the Residency Determination, is not going to be what makes a difference. That leaves 1735 days to have been in Canada . . .
. . . well, unless, and I am guessing this may be the situation, before this recent time period there was a lot of time spent abroad, as in most of your time was abroad.
What I am saying is that if you have been living and working in Canada for the last two and a half years, no big deal that you spent 60 or 90 days in the U.S. recently. Does not matter.
If those 60 days matter, however, that is if you have not been living and working in Canada for the last two and a half years, but rather you are essentially on the cusp regarding the PR Residency Obligation and you really need these 60 days to count, that's a scenario in which it should come as no surprise if IRCC refers the PR card renewal application to Secondary Review with the prospect of a full blown Residency Determination looming ominously . . . and however one slices the pie, in that scenario how it goes will probably depend more on your overall situation and history and the impression you make.
Put it this way: it is never good to be dependent on a particularly technical interpretation and application of
AN EXCEPTION (yes, credit toward the PR RO based on time abroad for a Canadian business is an exception) if you are someone whose circumstances might otherwise not make a favourable impression.
Sure, if there is no doubt you are entitled to the credit, and those 60 days make the difference, you get the credit, you get to count them. Thus, if for sure you are employed by a
qualified Canadian business based in Canada, time spent assigned abroad by the employer, should count. (There are some additional technicalities, not worth being distracted by in this context.)
If, however, it is not definitive that the exception applies, the time abroad must be counted, and it often is no where near definitive, the impression IRCC has (based on many other factors) can tip the scales of interpretation and application one way or the other all too easily.
My take (offering more in the vein of advice than I usually do, pushing the envelope for me in this regard, but doing so because my sense is the situation probably falls within one or the other alternative scenarios which follow):
-- if you have been living and working in Canada for two plus years, and are thus just a little short, you should wait until actual presence in Canada meets the 730 day minimum threshold before making a PR card renewal application. The wait in this scenario should not be long, so there is no reason to mess with approaching this any other way than based on actual presence in Canada.
-- if you have not been living and working in Canada long enough to make the wait to reach the 730 day threshold fairly short, then you really need to wait until you meet the threshold based on actual presence. If, for example, you are piecing together various different times spent in Canada, rather than regularly living and working in Canada for the last two years or so, thus for example relying on time going back more than three or four years or so, and you really need the 60 days in the U.S. to count, there is a risk of some critical inferences not going your way.
That said, how to proceed is a personal choice based on
YOUR OWN best assessment of
ALL the facts and circumstances.
Some clarifications:
My sense is that the technical scope of the exception which allows counting time spent abroad employed by a Canadian business toward compliance with the PR RO, is not the real, or at least the important issue in the situation facing
bi90 (the OP).
But the discussion above raises conflicting perspectives relative to the scope of the employed-abroad exception, and the scope of this exception is a common question . . . that is, the scope and application of this exception is a common question of import to more than just the OP here.
While I doubt there will be much consensus regarding its scope, this is indeed an important issue for many, and problematic for a rather significant percentage of those for whom it is a pertinent issue. So I throw my take on it into the ring, for what it is worth:
Overall, CIC's approach in recent years has tended to be rather tough, at the least narrow and strict.
I agree with
kateg that the following statement by
scylla is not correct:
scylla said:
. . . For the time outside of Canada to count as time inside of Canada, your company would have to relocate you from a job in Canada to a job outside of Canada (i.e. where you move outside of Canada to live for a few years).
And thus I disagree with:
scylla said:
You've misunderstood the regulation. For the time outside of Canada to count - the person has to be employed on a full time basis outside of Canada. That's what "outside Canada employed on a full time basis" means. Again, business trips don't count.
Foremost, however, it warrants emphasizing that historically CIC (now IRCC, but I am now referring to how CIC has approached this in the past, up to somewhat recently) has employed a rather narrow and strict interpretation as to all the technical elements of the exception:
-- qualified employer, a Canadian business
-- -- (
kateg cited the particular requirements for a qualified employer; however, I do not concur in
kateg's application of these, necessarily, to a branch office in Canada, but think it could depend on the particulars)
-- qualified employment, which is
-- -- full time employment, and
-- -- a
temporary assignment
-- -- intended to include a return to employment in Canada at end of assignment
Full time employment:
The requirement to be employed on a full time basis is essentially in reference to the employee-employer relationship, that is that the employee is employed full time by the employer (this is explicitly addressed in a number of IAD decisions), including during the course of the assignment abroad. There is no minimum duration for the assignment abroad. One day, one week, one month, or longer.
The key here is that the PR is employed full time, including while abroad engaged in activity on behalf of the employer (this may be indirectly as well as directly, so long as it is assigned by the employer).
Duration does not matter, except that it is clearly not a permanent position abroad, that the duration reflects it is an
assignment.
As noted, the particular duration otherwise does not matter, and in particular it can be for a rather short duration (assigned to attend a trade show, for example, as
kateg suggests). Typically, however, assignments for a very short duration do not result in the PR being abroad so long that the PR ends up being short of days actually present, in which event there is no need to calculate credit for time abroad on assignment.
On the other hand, CIC has rather emphatically interpreted
assignment to mean an assignment
on a temporary basis (see OP 10 cited by
kateg). Thus, for some PRs employed for
years at a location abroad, CIC, with concurring conclusion by IAD, determined that to
not be a
temporary assignment and thus not qualifying for the exception.
There are many other ways in which the IAD has, in effect, hung the decision on determining the employment was
not an assignment.
The most common one is where the PR was hired abroad or otherwise was not first an employee working for the employer in Canada. (see, for example,
IAD decision regarding Jian Wang 2015 CanLII 91106 (CA IRB))
It is clear that among the characteristics of the employment that CIC and the IAD has focused on in these cases, the duration of the assignment is important, but the reason the duration is important is a key clue: to be sure it is indeed an
assignment (as in temporary) rather than a permanent full time job at a location abroad.
I have no doubt that a PR employed by a
qualified Canadian business who is sent abroad for what might be typically described as a
business trip on behalf of the employer, can rely on counting that time abroad toward the PR Residency Obligation. But that is not the sort of PR who would need such time to count. And, as I have cautioned relative to the OP here, actually if the PR is in a position to need such time to count, that indicates a pattern of absence which itself will have a far bigger impact on the assessment of compliance with the PR RO.
I am probably bungling the point. Let me key this: yes, technicalities matter. But when a broad determination depends on technicalities applied to small pieces of the puzzle, the broader scenario looms far larger in the analytical equation that determines the outcome.
Or, put another way, depending on a favourable application of the law or rule based on technicalities is risky, very risky. It is more common for decision-makers to rely on technicalities to justify their decision, so they can decide the matter in the way they think it should be decided. Any attempt to persuade a decision-maker to reach a certain outcome based on a technicality depends on that technicality being absolutely applicable and there being no other reason why the decision-maker could decide the other way.
