PR card transferred to local office for further investigation

[Ninio]

In 2014, when you were hired by the Canadian company, were you hired while you were living in Canada and then were asked to go on business trips?

During your times outside of Canada with your Canadian spouse or children, why did your spouse/children need to be outside Canada? Did your spouse or children need to be outside Canada and you followed them or were you the one who needed to be outside of Canada and they followed you?

@dpenabill has been answering questions and giving logical and well thought out answers in terms of these but from what I understand, you must have been employed and working in Canada and they just needed to have you away for business trips for those to count. Also, if you are the one who needs to be outside of Canada and your spouse/children were the ones following you, that possibly does not count either. I could have totally read things wrong but if you read through dpenabill's replies you may get some ideas on what may happen.[/QUOTE]


1- Yes I was hired by the company on September 2014 and then was asked to go on business trips especially that they know that I have been familiar with the Chinese market since 2004 and doing big business between China and Congo and Lebanon, and they wanted to expand their business through international sales and markets.

 

[canuck_in_uk]

In 2014, when you were hired by the Canadian company, were you hired while you were living in Canada and then were asked to go on business trips?

During your times outside of Canada with your Canadian spouse or children, why did your spouse/children need to be outside Canada? Did your spouse or children need to be outside Canada and you followed them or were you the one who needed to be outside of Canada and they followed you?

@dpenabill has been answering questions and giving logical and well thought out answers in terms of these but from what I understand, you must have been employed and working in Canada and they just needed to have you away for business trips for those to count. Also, if you are the one who needs to be outside of Canada and your spouse/children were the ones following you, that possibly does not count either. I could have totally read things wrong but if you read through dpenabill's replies you may get some ideas on what may happen.


1- Yes I was hired by the company on September 2014 and then was asked to go on business trips especially that they know that I have been familiar with the Chinese market since 2004 and doing big business between China and Congo and Lebanon, and they wanted to expand their business through international sales and markets.

Situation 2. Employment outside Canada

You may count each day you worked outside Canada if:

• you are an employee of, or under contract to, a Canadian business or the public service of Canada or of a province or territory and
• as a term of your job or contract, you are assigned on a full-time basis to:
  • a position outside Canada
  • an affiliated enterprise outside Canada or
  • a client of the Canadian business or the public service outside Canada; and
• you will continue working for the employer in Canada after the assignment.

Note the bold "FULL-TIME BASIS". Business trips don't qualify.

 

[Buletruck]

Note the bold "FULL-TIME BASIS". Business trips don't qualify.

That’s a pretty clear definition of what is allowed.

The issue is the OP’s interpretation vs the intent of the requirement. Interpretations always tend to favour ones own position and doesn’t acknowledge the actual intent.

 

[dpenabill]

AS I have posted other times, TIME ABROAD ON BUSINESS TRIPS CAN QUALIFY FOR CREDIT TOWARD PR RO

Caveat: I doubt this is what matters in the situation facing @Ninio but to be clear given overt contrary statements about business trips above, it warrants clarifying that there is NO reason why a "business trip" abroad is distinguishable from what constitutes a temporary assignment abroad that otherwise qualifies for the employed-abroad-by-a-Canadian-business credit.

That is, I DISAGREE with any blanket statement that business trips will NOT qualify for the employed-abroad-by-a-Canadian-business credit.

Yes, the PR must be employed on a "full-time basis," and the relevant regulation (Subsection 61(3) IRPA Regulations) states the credit requires the PR to be "assigned on full-time basis" to the position abroad (whereas the statutory provision, subsection 28(2)(a)(iii), refers to being "outside Canada employed on a full-time basis by a Canadian business . . . ") BUT there is nothing in particular about the qualifying requirements which will preclude counting time abroad on business trips. In particular, there is no need to characterize being assigned abroad as a business trip or otherwise. Or, to state it differently, there is no reason why an assignment abroad which qualifies for credit would then NOT qualify if it is described as a "business trip."

Since more than a couple forum participants who usually make an effort to get things right are expressing a contrary view, I will make an effort to more fully document why it is NOT true that business trips, as such, are precluded credit. This demands doing the homework. And in doing the homework, I will of course diligently review IAD and Federal Court decisions which discuss the "full time basis" element looking for any which distinguish "business trips" and based on that distinction rule that such time does not count. (So far I have not seen any such decisions.)

So I will make an effort to return and address this more fully.

In the meantime, to be clear, I am aware of decisions such as the IAD decision regarding Guomin Shen (should link), in which the IAD ruled a particular PR's "business trips" did NOT qualify for the credit; the IAD stated:

"I find that there is insufficient evidence to establish that the appellant was assigned on a full-time basis to a position outside Canada . . . . Rather, the evidence shows, as the appellant himself has testified, that his position with Canadian Metec Ltd. during the period under review was a position based inside Canada."​

This part of the decision appears to largely hinge on the absence of a particular "position" abroad or assignment to an affiliated enterprise, or client. This is an interpretation and application of Regulation 61(3) (see https://laws-lois.justice.gc.ca/eng/regulations/SOR-2002-227/page-14.html#h-32). IT IS A DETERMINATION of FACT. It is based on the factual circumstances underlying the trips abroad AND does NOT state that time abroad characterized as a business trip is precluded from qualifying for the credit.

The import of that decision is largely muted by the fact that it was made in the context of an agreed-upon H&C decision to grant the appeal and allow this individual to retain his PR status. (Moreover this decision is NOT cited as authority by any other IAD or by the Federal Court, for any aspect of the ruling let alone this particular finding of fact.)

Additionally, the decision appears to implicitly preclude being assigned to a temporary position abroad if the PR has an ongoing position in Canada, which if that is part of the IAD's reason, I think it is suspect at best if not outright wrong (caveat: I may have it backwards; perhaps the IAD was merely considering the fact of the ongoing position in Canada as relevant evidence the PR was not assigned to position abroad rather than as directly establishing there was no assigned position abroad).

To date I have not yet seen a case which explicitly interprets the statute or regulation to overtly preclude credit on the basis that the time abroad was for a "business trip," and frankly any such approach is inconsistent with the IRCC's emphasis on the TEMPORARY nature of the assignment abroad.

The Federal Court and IAD decisions which address the "full-time basis" element, that I am familiar with, are (1) focused on the employment relationship itself (thus, for example, those working strictly on a commission basis have been challenged for not being employed on a full-time basis), or (2) the scope of employment relative to time abroad (thus, for example, a PR traveling abroad for partially business reasons AND also for family reasons was not deemed to employed abroad on a full time basis), or (3) the full-time basis factor is largely noted in passing. (So far as I have seen, the latter is the most common reference to full-time basis in IAD decisions.)

As I have observed elsewhere, it is very likely that few business trips abroad are counted BUT that is NOT because they do not qualify for the credit, but rather because PRs based in Canada making business trips abroad will usually meet the PR RO based on the amount of time they are physically present in Canada. No need to count the time abroad.

In contrast, my sense is that most business trips abroad, made by PRs employed in Canada by a qualified Canadian business, should qualify for the credit. Which is diametrically opposed to statements by others that flatly state "business trips do NOT count."

After all, bottom-line, there is NO need to describe an assignment abroad as a business trip. "Was abroad pursuant to short assignment to meet with clients or prospective clients in cities X and Z on behalf of my employer."

Will try to do some homework to more fully document the issue.

 

[dpenabill]

OVERALL OBSERVATION AS TO STANDING OF @Ninio's PR STATUS: Given the amount of time @Ninio has remained in Canada, it appears that @Ninio should have little or NO problem retaining PR status for now. @Ninio appears to CURRENTLY BE IN COMPLIANCE WITH THE PR RO. So there should be no reason why IRCC will deny the PR card application (now) or otherwise make a decision to terminate PR status. I will address this in-depth below.

First . . .
As I noted above, I doubt that whether time abroad pursuant to "business trips" may or may not count toward compliance with the PR Residency Obligation (contrary to views expressed by other participants in the forum) is what matters in @Ninio's situation.

The first part of this post is for clarification of that observation.

I became a PR on 11 June 2013 and ends on 15 August 2018, during that period I was working since 2014 as the purchase manager for a certified Canadian company and I had many travels to China, France ,Lebanon and Dubai for that issue, I was physically present in Canada for 630 days and the rest of the days I was on my business trips. Now I am stuck in Canada with a non valid PR, and the company accepted my excuses for not traveling, but now I need to have some informations from the IRCC just to save my job.

I was hired by the company on September 2014 and then was asked to go on business trips especially that they know that I have been familiar with the Chinese market since 2004 and doing big business between China and Congo and Lebanon, and they wanted to expand their business through international sales and markets.

Whether the situation will support obtaining credit for the time abroad has largely been addressed in another topic. Some forum participants have more or less definitively declared it will NOT. While I do NOT agree with the definiteness of those statements, my sense, as I expressed in those discussions, leans toward the likeliness the time abroad will NOT be given credit. (Note: at this juncture it appears you do not need the credit.)

In particular, I have already addressed this in some detail, specifically in response to queries by @Ninio:

It is NOT clear whether this will qualify for the credit or not. As already discussed, assessing an individual case is so individual-fact specific it is NOT possible for anyone here to offer a reliable opinion about whether your employment qualifies for the credit. To be frank, several aspects of your description suggest that you do NOT qualify for the credit. BUT again, neither I nor anyone else here can reliably evaluate this for you. Again, if you are abroad so much that you do not meet the RO by just counting days present in Canada, evaluating qualification for this credit tends to be very tricky.

Among the aspects suggesting problems qualifying for the employed-abroad-by-Canadian-business credit, it appears you were hired for an overseas position, rather than hired to work IN Canada and THEN TEMPORARILY assigned abroad. Generally this will NOT qualify for the credit. [SEE FULL EXPLANATION AT LINK]

To be clear, however, regarding the characterization of the time abroad as "business trips," or as the time abroad might otherwise be described, I DOUBT THAT IS WHAT MATTERS. I am a little confused why some seasoned participants here appear to attach definitive weight to a mere label like "business trip," especially in the absence of any IRCC information, statute or regulation, or IAD or FC decision which so much as suggests that time abroad in the employment of a qualified business will NOT count if it was a "business trip." As I noted I hope to do the homework to address this more fully.

That said, likewise for clarification, I doubt that characterizing the time abroad as "business trips" helps either. "Business trip" is merely a general descriptive label of the purpose for being abroad. The label illuminates little or nothing particularly relevant to the elements of the credit. That is, whether or not the time abroad was a "business trip" is NOT likely to determine whether the time abroad is allowed credit or not.


STANDING OF @Ninio's PR STATUS:

NOTWITHSTANDING THE ABOVE, the low likelihood of the time abroad counting toward the RO for @Ninio does NOT dictate how things will ultimately go for @Ninio. In particular, I especially disagree with the view that "the PR card renewal is going to be refused and IRCC will start the process of revoking [@Ninio's] PR status."

In particular there is NO reason to apprehend that IRCC will "start the process of revoking [@Ninio's] PR status." Of course this depends in large part on @Ninio's continued presence in Canada since, at least, mid-August 2018 to the present, which appears to be the case:

Actually, the day my PR expired was on [15 August 2018] and my days physically present in Canada until that date were 630 days and I am still here since and I guess the days since my card expired and until now might help adding some more . . .

@Ninio's guess about days since August is correct: For purposes of PR admissibility relative to RO compliance, the days present in Canada since applying for the new PR card count. There is NO basis for NOT counting those days. No 44(1) Report or Departure Order has been issued. Thus, unless fifty or more days of presence are now more than five years past (presence calculation as of now: 630, plus 150 since last mid-August, minus any of the 630 which are now more than five years past), @Ninio is currently in compliance with the PR RO. Thus there is NO basis for revoking @Ninio's PR status.

Technically it seems that IRCC can deny the application for a new PR card if it finds that @Ninio was not in compliance with the PR RO at the time the PR card application was made. If that was to happen I do NOT know the procedure. The one and only case I have seen involving an appeal of a PR card denial did not illuminate much about the particular procedure and that case involved an individual who was abroad and NOT in compliance with the PR RO at the time the PR card application was made AND also NOT in compliance at the time the decision was made.

IN actual CIC/IRCC practice, it is readily apparent that PRs who were short of RO compliance at the time they applied for a new PR card, but who are in compliance by the time the PR is scheduled for an interview/hearing, are generally issued a new PR card.

To be clear, @Ninio took a big risk applying for a new card at the time. After all, likewise in actual CIC/IRCC practice it has been readily apparent that when it is apparent on its face that the PR is NOT in compliance with the PR RO at the time of applying, CIC/IRCC has often promptly referred the application to the local office and proceeded with a formal Residency Determination. Since @Ninio made the application in April and remained in breach (assuming time employed abroad is NOT counted) of the PR RO until at least mid-November (and somewhat longer as some of the days initially counted toward presence probably become more than five years past and no longer count), PR status was very much AT-RISK. Which is to acknowledge that if IRCC had proceeded more quickly in conducting the Residency Determination, before additional time in Canada brought @Ninio into compliance with the RO, that could have resulted in an adjudication of inadmissibility which if not successfully appealed would have terminated PR status.

This does NOT address or rely on potential H&C reasons, however, which also (1) must be considered before any action to revoke PR status is taken, and in addition to other potential H&C reasons, (2) can include substantial equitable weight in favour of a PR who had a reasonable belief the time employed abroad would count (in regards to the latter, there have been IAD decisions actually allowing time abroad credit, not merely as an H&C factor but actual credit, based on the PR's reasonable reliance the credit was available).

Thus, as I noted at the beginning of this post, it appears that @Ninio is very likely OK, not at much risk for losing PR status currently.

CAVEAT: Assuming the time employed abroad does NOT count, which seems the more likely situation, @Ninio probably needs to be very careful about spending time abroad going forward. Even if IRCC issues and delivers a new PR card (which also seems to be the more likely scenario), the overall situation suggests @Ninio might face elevated RO scrutiny at a PoE when returning to Canada in the future. Indeed, that seems likely. So it will be important for @Ninio to be sure to ALWAYS have been in Canada more than 730 days within the preceding five years, for each and any day going forward.

I will address some of @Ninio's other queries above in yet another post . . .

 

[dpenabill]

My card expired in 15 August 2018, I was advised that I should renew my card 3 months before it ends , I applied for the renewal on 30 April 2018, on that date I had 600 days of physical presence in Canada.

As for the RO, it was clear that business trips abroad for a local certified Canadian company and the accompanying of a Canadian spouse will count towards my residency obligations.

Where does that put my case if I hadn't 730 days? refusal of my card? and then what?

As to current standing of your status, I address that in my previous post.

It is NOT at all clear that "business trips abroad for a local certified Canadian company and the accompanying of a Canadian spouse will count towards my residency obligations."

On the contrary, your report of the circumstances attendant your time abroad suggest the contrary. This has been addressed multiple times now, including as to the accompanying-Canadian-citizen-spouse credit:

Re accompanying-citizen-spouse abroad credit: My previous post should amply cover that. This credit does not apply unless you were living abroad together. (Even then there are can be some nuances, but to qualify for the credit at the very least the couple need to be cohabiting abroad.)

which in turn references:

The accompanying a Canadian citizen spouse abroad exception/credit can be a LITTLE tricky for some, BUT at the very least getting the credit requires the PR to be living-together (cohabiting) abroad with the citizen spouse. Potential snags in this have been discussed at length in other topics . . . but for a PR who was living in Canada with a Canadian citizen spouse and they subsequently are living abroad together, this still appears to be a SAFE credit PRs can rely on . . . again, for time the couple are actually living together abroad.

Just the fact of being married to a Canadian does NOT qualify for credit.

THUS: If your spouse is not living abroad with you, there is NO accompanying-a-Canadian-citizen-spouse credit. Even if she accompanies you occasionally abroad, odds are those days together abroad will NOT get credit.

It warrants remembering that the IAD and the Federal Court have emphatically stated that the provisions allowing credit for time abroad are to be interpreted IN LIGHT OF THE PURPOSE OF PR STATUS, which is to facilitate PERMANENTLY settling and living in Canada. If and when a PR appears to be using these provisions to deliberately facilitate living or working abroad, IRCC appears to be particularly strict and skeptical. Intent matters, sure. Appearance also matters, for sure.

Thus, for example, while IRCC does not, not usually, take a strict approach considering who-accompanied-whom, relative to the accompanying-a-Canadian-citizen-spouse credit, so long as the couple are LIVING together, if it appears that the Canadian spouse is accompanying the PR abroad just enough to add days that would put the PR in compliance with the RO, that is very likely a recipe for a NEGATIVE, skeptical, and strict approach to assessing the availability of this credit. Note that the who-accompanied-whom consideration is discussed in-depth in other topics.

For the approval the wait is 10 months and for refusal 10 months as well? This year I have to renew my business contract, should I tell the company that it is over?

With all due respect to the immigration agents, but I will remain clinging to my opinion that traps are put in an indirect way and everyone interprets the law according to his temperament.

It is clear that:
Residency days need not to be consecutive and may be accumulated inside or even outside Canada in the following ways:

1- By accompanying a spouse / common-law partner who is a Canadian citizen.
2- As a child accompanying a parent.
3- By employment on a full-time basis with a Canadian enterprise or the Public Service of Canada.

I know there are a lot of people trying to manipulate this subject, but there are some people who respect the law and all that it provides. If the immigration Department was clear from the beginning and noted that only 730 days should be observed without any exceptions, things would have been different. We did not try to circumvent the law that we respect, but instead we applied its provisions strictly.

My Personal opinion with all due respect to all the friends here : good citizenship, even for 630 days is far better than staying for 3000 days in fraud, tax evasions and disrespect for laws. I think this is what immigration officers should look into

It is NOT clear what you are suggesting in this post.

There are, for sure, some RISKS and pitfalls lurking for the PR who does not permanently settle and live in Canada. Given the explicit purpose of the grant of PR status, this should be NO surprise. It kind of invokes a DUH!

There are no traps. IRCC does NOT engage in GOTCHA games. Indeed, the approach IRCC typically takes gives PRs a great deal of flexibility, and is typically rather lenient so long as the PR is on track to establish a life LIVING in Canada, and even otherwise allows credit toward PR RO compliance if it is clear the PR is entitled to such credit under the law. As @Buletruck suggested, above, many PRs have a tendency to interpret the rules in a way that favours them, which often fails to recognize how the rules are actually applied.

Note for example item 1 you list above, stating that days can be accumulated outside Canada "1- By accompanying a spouse / common-law partner who is a Canadian citizen." In addition to what is necessary to actually qualify for this credit, you have described times when it is your Canadian citizen spouse accompanying you, the PR, as if to expect that time to count for you. Several IAD panels have clearly stated the latter, the citizen accompanying the PR, is NOT the same as the PR accompanying the Citizen spouse. This is NO trap. A pitfall, perhaps, but NOT a trap. And so far there is little or no sign IRCC applies this distinction in any draconian way. Indeed, who-accompanied-whom does NOT appear to be considered UNLESS it is blatantly obvious the PR is not the one accompanying the Canadian citizen or there are otherwise some rather NOTABLE and largely egregious circumstances.

As I have previously commented, your situation (the situation as you have reported it) appears to be OK. For now. That does not resolve your concerns in regards to your current employment. That is very much a personal matter which only you can decide what is the best way to handle the situation. BUT it would be prudent to carefully weigh your options going forward recognizing how important it is to establish a life in Canada which includes spending, at a very minimum, two/fifths of your time IN CANADA.

 

[dpenabill]

In following up the above discussion, I have started a new topic to specifically address updates to information about "business trips" and the working-abroad-RO-credit.

I particularly hope that those who are quoted stating a definitive rule that "business trips" do not count will respond and share any known source for such a rule or policy.

See:

FOREMOST: A REQUEST FOR SOURCES re any rule specifically about "business trips" and the working-abroad-RO-credit:

The impetus for starting this topic is continued repetition of the widespread and so far as I can determine ERRONEOUS declaration that "business trips" abroad do NOT count toward RO compliance. In so far as I can find, and I have done the research (and this kind of research is something I have a good deal experience doing), there is NO credible source so much as suggesting any such rule or policy.

IF ANYONE HAS ANY CREDIBLE SOURCE showing there is any such rule or policy pursuant to which "business trips" abroad are NOT allowed credit toward PR compliance, PLEASE (please!) share here. I do not pretend to be infallible. I make mistakes. I prefer we get it right.

In particular, I hope those who have expressed the rule in the following posts will share a source or otherwise explain why they think there is a flat rule that business trips will not count:

Business trips outside of Canada cannot be counted towards the residency requirement.

Note the bold "FULL-TIME BASIS". Business trips don't qualify.

Business trips doesn't count towards residency requirements.

Business trips do not count towards the residency obligation.

They [the residency requirements] do not count time spent on regular business travelling

 

[dpenabill]

Further Observation re Procedure For PR application for a new PR card when short of meeting RO:

The focus of recent discussion in this topic has been the queries posed by @Ninio, in regards to which it has been asserted that @Ninio will be subject to the process to revoke PR status. If @Ninio's account of days present in Canada is accurate, that assertion is wrong, since according to @Ninio total presence in Canada to date is around 780 days within the last five years (minus any days that were counted as of August 2018 which are now more than five years past).

STANDING OF @Ninio's PR STATUS:

NOTWITHSTANDING THE ABOVE, the low likelihood of the time abroad counting toward the RO for @Ninio does NOT dictate how things will ultimately go for @Ninio. In particular, I especially disagree with the view that "the PR card renewal is going to be refused and IRCC will start the process of revoking [@Ninio's] PR status."

In particular there is NO reason to apprehend that IRCC will "start the process of revoking [@Ninio's] PR status." Of course this depends in large part on @Ninio's continued presence in Canada since, at least, mid-August 2018 to the present, which appears to be the case:
@Ninio's guess about days since August is correct: For purposes of PR admissibility relative to RO compliance, the days present in Canada since applying for the new PR card count. There is NO basis for NOT counting those days. No 44(1) Report or Departure Order has been issued. Thus, unless fifty or more days of presence are now more than five years past (presence calculation as of now: 630, plus 150 since last mid-August, minus any of the 630 which are now more than five years past), @Ninio is currently in compliance with the PR RO. Thus there is NO basis for revoking PR status.

That is, based on the accounting reported, @Ninio is currently in compliance with the PR RO, thus NOT inadmissible, thus NOT subject to being Reported for inadmissibility or being issued a Departure/Removal Order.

This depends, factually, on @Ninio's continued presence in Canada since making the PRC application. But it also depends on the procedures actually employed by IRCC.

In particular, to be clear, as long as a PR is currently in compliance with the PR RO the PR is NOT in breach, NOT inadmissible, and thus NOT subject (not validly subject) to proceedings to revoke or terminate the PR's status. The fact that a PR has, as a matter of fact, been in breach of the RO on some previous occasion is largely NOT relevant (albeit recognizing the overall presence/absence history may be relevant in evaluating evidence of presence/absence during the relevant five years).
Thus the fact the PR was in breach of the RO on the date the PRC application was made does NOT dictate a PR's inadmissibility.

Which is where the procedure followed matters: If IRCC proceeded to conduct a formal Residency Determination soon after the PRC application was made, on a date when the PR is still NOT in compliance with the PR RO, unless there were sufficient H&C reasons to allow the PR to retain status, a Departure/Removal Order would be issued.

In contrast, where (as here, in @Ninio's situation) IRCC does not conduct the formal Residency Determination until a later date, and by that date the PR is in compliance with the PR RO, the PR is NOT in breach, NOT inadmissible, and thus NOT subject to being issued a Departure Order. No starting the process of terminating PR status.

This past year there was an IAD decision which amply illustrates the procedure. See Ahmadizadeh v Canada (Public Safety and Emergency Preparedness), 2018 CanLII 102091 (CA IRB), <http://canlii.ca/t/hvtr6>

However, this decision is factually converse. The PR made a PRC application when, at least purportedly, the PR was in compliance with the PR RO but left and largely remained outside Canada after making that application. There was some question about the PR's compliance and the PR was asked to complete a Residency Questionnaire . . . the formal Residency Determination was not made until more than two years AFTER the PRC application was made.

As I have attempted to make clear, the operative date for assessing RO compliance was the date the formal Residency Determination was made, which again was more than TWO YEARS later than when the PRC application was made, and on that date a 44(1) Inadmissibility Report was issued. The Departure Order was not issued until another year had passed, following an interview.

What this case illuminates is that the determination of inadmissibility was NOT based on presence/absences as of the date the PRC application was made, but based on the later date when there was a formal decision made.

For Ahmadizadeh this meant that despite being in compliance with the RO on the date the PRC application was made, as of the later date when the Residency Determination was made Ahmadizadeh was NO longer in compliance and thus was inadmissible.

As I noted in my previous post, this particular procedure is NOT commonly reported (which appears to obviously be because there are very few of these cases). Extrapolating positive propositions based on the absence of reports tends to be precarious, but in the context of assessing RO compliance the general rules and policies and practices are clear enough to nonetheless recognize that for purposes of adjudicating inadmissibility for a breach of the RO, the PR who stays in Canada long enough to be in compliance BEFORE any formal decision of a breach is made has, effectively, CURED the breach and is no longer at risk of losing status. The Ahmadizadeh case (should link) illustrates the actual procedure (illustrating, in particular, that the operative date for determining admissibility is later than the date the PRC was made), and this is consistent with credible anecdotal reports in many topics here.

Probably obvious that I came across this particular decision in continuing research for more fully explaining the various elements at issue in determining when a credit is available for time abroad in the employ of a Canadian business. The Ahmadizadeh case (should link) also involves a ruling that the PR was not entitled to credit for time abroad while purportedly employed on a full-time basis by a Canadian business. Here, though, this was directly based on the fact that the PR was "a local hire," and thus NOT ASSIGNED to work abroad.

 

[Ninio]

Further Observation re Procedure For PR application for a new PR card when short of meeting RO:

The focus of recent discussion in this topic has been the queries posed by @Ninio, in regards to which it has been asserted that @Ninio will be subject to the process to revoke PR status. If @Ninio's account of days present in Canada is accurate, that assertion is wrong, since according to @Ninio total presence in Canada to date is around 780 days within the last five years (minus any days that were counted as of August 2018 which are now more than five years past).



That is, based on the accounting reported, @Ninio is currently in compliance with the PR RO, thus NOT inadmissible, thus NOT subject to being Reported for inadmissibility or being issued a Departure/Removal Order.

This depends, factually, on @Ninio's continued presence in Canada since making the PRC application. But it also depends on the procedures actually employed by IRCC.

In particular, to be clear, as long as a PR is currently in compliance with the PR RO the PR is NOT in breach, NOT inadmissible, and thus NOT subject (not validly subject) to proceedings to revoke or terminate the PR's status. The fact that a PR has, as a matter of fact, been in breach of the RO on some previous occasion is largely NOT relevant (albeit recognizing the overall presence/absence history may be relevant in evaluating evidence of presence/absence during the relevant five years).
Thus the fact the PR was in breach of the RO on the date the PRC application was made does NOT dictate a PR's inadmissibility.

Which is where the procedure followed matters: If IRCC proceeded to conduct a formal Residency Determination soon after the PRC application was made, on a date when the PR is still NOT in compliance with the PR RO, unless there were sufficient H&C reasons to allow the PR to retain status, a Departure/Removal Order would be issued.


Thank you for this very detailed answer that demonstrates how professional you are. All I want is for my request to be processed and especially for all the applicants who have been waiting for a long time without any information about their applications.

What you stated above about my case is accurate, I've been in Canada since 16 July 2018 until now.

This makes the total number of physical presence in Canada until now around 800 days, does those days count for the citizenship if I stayed all the coming year in Canada?

Thanks again
In contrast, where (as here, in @Ninio's situation) IRCC does not conduct the formal Residency Determination until a later date, and by that date the PR is in compliance with the PR RO, the PR is NOT in breach, NOT inadmissible, and thus NOT subject to being issued a Departure Order. No starting the process of terminating PR status.

This past year there was an IAD decision which amply illustrates the procedure. See Ahmadizadeh v Canada (Public Safety and Emergency Preparedness), 2018 CanLII 102091 (CA IRB), <http://canlii.ca/t/hvtr6>

However, this decision is factually converse. The PR made a PRC application when, at least purportedly, the PR was in compliance with the PR RO but left and largely remained outside Canada after making that application. There was some question about the PR's compliance and the PR was asked to complete a Residency Questionnaire . . . the formal Residency Determination was not made until more than two years AFTER the PRC application was made.

As I have attempted to make clear, the operative date for assessing RO compliance was the date the formal Residency Determination was made, which again was more than TWO YEARS later than when the PRC application was made, and on that date a 44(1) Inadmissibility Report was issued. The Departure Order was not issued until another year had passed, following an interview.

What this case illuminates is that the determination of inadmissibility was NOT based on presence/absences as of the date the PRC application was made, but based on the later date when there was a formal decision made.

For Ahmadizadeh this meant that despite being in compliance with the RO on the date the PRC application was made, as of the later date when the Residency Determination was made Ahmadizadeh was NO longer in compliance and thus was inadmissible.

As I noted in my previous post, this particular procedure is NOT commonly reported (which appears to obviously be because there are very few of these cases). Extrapolating positive propositions based on the absence of reports tends to be precarious, but in the context of assessing RO compliance the general rules and policies and practices are clear enough to nonetheless recognize that for purposes of adjudicating inadmissibility for a breach of the RO, the PR who stays in Canada long enough to be in compliance BEFORE any formal decision of a breach is made has, effectively, CURED the breach and is no longer at risk of losing status. The Ahmadizadeh case (should link) illustrates the actual procedure (illustrating, in particular, that the operative date for determining admissibility is later than the date the PRC was made), and this is consistent with credible anecdotal reports in many topics here.

Probably obvious that I came across this particular decision in continuing research for more fully explaining the various elements at issue in determining when a credit is available for time abroad in the employ of a Canadian business. The Ahmadizadeh case (should link) also involves a ruling that the PR was not entitled to credit for time abroad while purportedly employed on a full-time basis by a Canadian business. Here, though, this was directly based on the fact that the PR was "a local hire," and thus NOT ASSIGNED to work abroad.

 

[dpenabill]

This post largely reflects many other posts in which I have attempted to illuminate the RISKS encountered when a PR is cutting-it-close.

Let's be clear: 800 days presence in Canada since January 26, 2014 meets the PR Residency Obligation. BUT the PR has the burden of proving he or she was actually present those days.

The rule is easy (notwithstanding how more than a few so often get the rule wrong). But compliance is still a QUESTION of FACT to be determined based on the evidence. The PR has the burden of proof. An IRCC official is the decision maker. IRCC officials are, in effect, TOTAL STRANGER BUREAUCRATS.

This makes the total number of physical presence in Canada until now around 800 days, does those days count for the citizenship if I stayed all the coming year in Canada?

As long as you have NOT been issued a 44(1) Report for Inadmissibility (due to a breach of the PR Residency Obligation), or otherwise been issued a Departure or Removal Order, the days you have been physically present in Canada within the "eligibility period" count toward meeting the physical presence requirement to be eligible for a grant of citizenship.

The "eligibility period" is the five years immediately preceding the date you make the citizenship application.

REMINDER: to my view there are many things to consider in making the decision about WHEN to apply for citizenship; meeting the minimum actual physical presence requirement is NECESSARY but there are many other factors to consider. That said, there are other forum participants who primarily focus on when the physical presence requirement is met, plus some buffer. The main difference between my view, and that of many others, appears to be about how much buffer, my view leaning toward a much larger buffer (if feasible, recognizing that immigrants have very varied lives and lifestyles and circumstances, and many are in situations allowing them less flexibility or choice). BUT that distinction tends to miss the point, that how much buffer is very personal and dependent on individual circumstances, and thus how much is prudent varies a great deal from person to person. That distinction also tends to overlook the fact that in some situations even a large buffer might not avoid RQ-related non-routine processing (in which event a larger buffer probably helps some, but the key in such cases is less about the total number of days and more about proof of actual presence for the days claimed).

Which brings things around to this:

All I want is for my request to be processed and especially for all the applicants who have been waiting for a long time without any information about their applications . . .

SHORT OBSERVATION: BE GLAD that IRCC has taken a long while processing your PRC application!

Keeping PR status still depends on a favourable factual decision. 800 days today, counting days between January 26, 2014 and January 26, 2019, meets the Residency Obligation. BUT of course you also have to meet the burden of proving that you have in fact been IN CANADA those 800 days today, counting days between January 26, 2014 and January 26, 2019. How it goes from here can depend on your presentation of objective documents to PROVE your presence. (There are other considerations, like possible H&C reasons which could save your status even if IRCC is NOT persuaded you were actually present all the days you claim.)

FOR PRs with a pattern of absences adding up to what I typically refer to as cutting-it-close, and especially when the time abroad is related to working abroad, meeting the burden of proof can pose a significant hurdle.

TO BE CLEAR, it appears you were LUCKY IRCC did NOT proceed to process your PRC application sooner. As I observe above, it appears likely you would NOT be allowed credit based on time abroad working for a Canadian business AND you were otherwise SHORT of meeting the PR RO, and thus for several months after you made the PRC application IRCC could have proceeded to make the formal Residency Determination and issue a Departure Order. Some forum participants erroneously describe that as beginning the process to revoke or terminate PR status, when in fact it is THE FORMAL ADJUDICATION WHICH DOES TERMINATE PR STATUS, and if not timely and successfully appealed, that is the decision which formally means PR status is lost.

YOU WERE AT REAL RISK for that happening.

As of now, it appears based on your account of presence during the preceding five years as of now (800 days or so), you are NOT in breach. So as of now you have, in effect, CURED your previous breach of the PR RO. The fact that you were previously in breach does NOT have any direct effect on your status. As long as the RO breach is cured, by simply coming into compliance, before any 44(1) Report or PR TD denial, the prior breach no longer has any substantive relevance.

BUT as I alluded in my previous post, it is NOT as if that history is forgotten. Even now, as of today, you are way short of having been in Canada even half the time in the last five years. Thus, if there is any question about where you were physically located, it would be entirely reasonable for a stranger bureaucrat to infer you were where you usually were: OUTSIDE CANADA. Even if you claim you were in Canada those days. This is to say your personal historical pattern tends to invite more scrutiny if not outright skepticism about when you were actually in Canada, potentially putting more pressure on you to PROVE (with objective evidence) your actual presence in Canada for the days you claim to have been in Canada. AND, REMEMBER, once a PR's time in Canada is open to question, it can be (and often is) as much about proving presence IN-BETWEEN TRAVEL DATES as it is about the dates-of-entry and dates-of-exit.

And a work history that is significantly, let alone largely, rooted in working abroad, tends to increase the difficulty of proving presence, since it tends to tip the reasonable-inference scales toward doubting presence.

THIS BAGGAGE IS LIKELY TO FOLLOW YOU FOR AWHILE. Including if and when you apply for citizenship. Meaning it could trigger RQ related processing for a citizenship application AND here too, if you are still cutting-it-close when you apply (say you have a relatively small buffer over the minimum), the calculation of days itself may be less important than meeting the burden of proving actual presence in-between your reported dates-of-entry and next reported date-of-exit (remember, proof you entered Canada on a particular day does NOT prove you were still in Canada the next day, let alone a week later).

As I have often posted and tried to emphasize: cutting-it-close is RISKY.

I do not mean to alarm you. Odds are very good this is going to go OK now . . . but again that is assuming your calculation is accurate and you can back it up with proof of actual presence when you claim to have been present. This is not an assumption to take for granted.

 

[Ninio]

This post largely reflects many other posts in which I have attempted to illuminate the RISKS encountered when a PR is cutting-it-close.

Let's be clear: 800 days presence in Canada since January 26, 2014 meets the PR Residency Obligation. BUT the PR has the burden of proving he or she was actually present those days.

The rule is easy (notwithstanding how more than a few so often get the rule wrong). But compliance is still a QUESTION of FACT to be determined based on the evidence. The PR has the burden of proof. An IRCC official is the decision maker. IRCC officials are, in effect, TOTAL STRANGER BUREAUCRATS.



As long as you have NOT been issued a 44(1) Report for Inadmissibility (due to a breach of the PR Residency Obligation), or otherwise been issued a Departure or Removal Order, the days you have been physically present in Canada within the "eligibility period" count toward meeting the physical presence requirement to be eligible for a grant of citizenship.

The "eligibility period" is the five years immediately preceding the date you make the citizenship application.

REMINDER: to my view there are many things to consider in making the decision about WHEN to apply for citizenship; meeting the minimum actual physical presence requirement is NECESSARY but there are many other factors to consider. That said, there are other forum participants who primarily focus on when the physical presence requirement is met, plus some buffer. The main difference between my view, and that of many others, appears to be about how much buffer, my view leaning toward a much larger buffer (if feasible, recognizing that immigrants have very varied lives and lifestyles and circumstances, and many are in situations allowing them less flexibility or choice). BUT that distinction tends to miss the point, that how much buffer is very personal and dependent on individual circumstances, and thus how much is prudent varies a great deal from person to person. That distinction also tends to overlook the fact that in some situations even a large buffer might not avoid RQ-related non-routine processing (in which event a larger buffer probably helps some, but the key in such cases is less about the total number of days and more about proof of actual presence for the days claimed).

Which brings things around to this:



SHORT OBSERVATION: BE GLAD that IRCC has taken a long while processing your PRC application!

Keeping PR status still depends on a favourable factual decision. 800 days today, counting days between January 26, 2014 and January 26, 2019, meets the Residency Obligation. BUT of course you also have to meet the burden of proving that you have in fact been IN CANADA those 800 days today, counting days between January 26, 2014 and January 26, 2019. How it goes from here can depend on your presentation of objective documents to PROVE your presence. (There are other considerations, like possible H&C reasons which could save your status even if IRCC is NOT persuaded you were actually present all the days you claim.)

FOR PRs with a pattern of absences adding up to what I typically refer to as cutting-it-close, and especially when the time abroad is related to working abroad, meeting the burden of proof can pose a significant hurdle.

TO BE CLEAR, it appears you were LUCKY IRCC did NOT proceed to process your PRC application sooner. As I observe above, it appears likely you would NOT be allowed credit based on time abroad working for a Canadian business AND you were otherwise SHORT of meeting the PR RO, and thus for several months after you made the PRC application IRCC could have proceeded to make the formal Residency Determination and issue a Departure Order. Some forum participants erroneously describe that as beginning the process to revoke or terminate PR status, when in fact it is THE FORMAL ADJUDICATION WHICH DOES TERMINATE PR STATUS, and if not timely and successfully appealed, that is the decision which formally means PR status is lost.

YOU WERE AT REAL RISK for that happening.

As of now, it appears based on your account of presence during the preceding five years as of now (800 days or so), you are NOT in breach. So as of now you have, in effect, CURED your previous breach of the PR RO. The fact that you were previously in breach does NOT have any direct effect on your status. As long as the RO breach is cured, by simply coming into compliance, before any 44(1) Report or PR TD denial, the prior breach no longer has any substantive relevance.

BUT as I alluded in my previous post, it is NOT as if that history is forgotten. Even now, as of today, you are way short of having been in Canada even half the time in the last five years. Thus, if there is any question about where you were physically located, it would be entirely reasonable for a stranger bureaucrat to infer you were where you usually were: OUTSIDE CANADA. Even if you claim you were in Canada those days. This is to say your personal historical pattern tends to invite more scrutiny if not outright skepticism about when you were actually in Canada, potentially putting more pressure on you to PROVE (with objective evidence) your actual presence in Canada for the days you claim to have been in Canada. AND, REMEMBER, once a PR's time in Canada is open to question, it can be (and often is) as much about proving presence IN-BETWEEN TRAVEL DATES as it is about the dates-of-entry and dates-of-exit.

And a work history that is significantly, let alone largely, rooted in working abroad, tends to increase the difficulty of proving presence, since it tends to tip the reasonable-inference scales toward doubting presence.

THIS BAGGAGE IS LIKELY TO FOLLOW YOU FOR AWHILE. Including if and when you apply for citizenship. Meaning it could trigger RQ related processing for a citizenship application AND here too, if you are still cutting-it-close when you apply (say you have a relatively small buffer over the minimum), the calculation of days itself may be less important than meeting the burden of proving actual presence in-between your reported dates-of-entry and next reported date-of-exit (remember, proof you entered Canada on a particular day does NOT prove you were still in Canada the next day, let alone a week later).

As I have often posted and tried to emphasize: cutting-it-close is RISKY.

I do not mean to alarm you. Odds are very good this is going to go OK now . . . but again that is assuming your calculation is accurate and you can back it up with proof of actual presence when you claim to have been present. This is not an assumption to take for granted.

Hello dpenabill

Yesterday I called the immigration department to try to find out any information regarding my application for the PR, I waited 40 minutes and thought that I would get an answer. After waiting, one of the agents replied and asked for some info about me.

To my big indescribable surprise, she told me that my application began to be reviewed on 24 January 2019 and from this date I should start counting 62 working days, I answered her that this is unfair especially that I received an email telling me that they started processing my application on 24 October 2018.

I told her that I have to travel overseas for the Canadian company that I work for in Canada and that I already had an oral warning from my employer that if there was no way to travel, they will be forced to find someone else to do my job.

The agent told me that I could leave and then apply for a PRTD from the Canadian embassy in the country that I am travelling to, but she is not certain if the Embassy will grant me the visa, and that my second option is to take a visa to the U.S and drive there and that in that way the Canadian immigration will not know that I had left the territory.

I asked her, from what I understand, is as if you are telling me to manipulate the system by going secretly to the U.S( actually I don't have a visa yet), or to travel overseas and get stuck in a country with no way of returning back.

In fact, this is very frustrating. There was a woman speaking on TV that there are 18 thousand applications pending since 2015 and that the whole problem is due to the lack of staff in the immigration department and she said that this situation will get worse especially after the announcement of accepting the reception of more that 1 million immigrants and refugees within the 2 coming years.

This can only be explained as being very unfair and a message that is irresponsible.

Dpenabill, I consider you an expert (even though you claim not be), I can not lose my job what so ever, do you think that I would be granted a PRTD to come back to Canada after I finish my work overseas?

Thank you

 

[dpenabill]

Hello dpenabill

Yesterday I called the immigration department to try to find out any information regarding my application for the PR, I waited 40 minutes and thought that I would get an answer. After waiting, one of the agents replied and asked for some info about me.

To my big indescribable surprise, she told me that my application began to be reviewed on 24 January 2019 and from this date I should start counting 62 working days, I answered her that this is unfair especially that I received an email telling me that they started processing my application on 24 October 2018.

I told her that I have to travel overseas for the Canadian company that I work for in Canada and that I already had an oral warning from my employer that if there was no way to travel, they will be forced to find someone else to do my job.

The agent told me that I could leave and then apply for a PRTD from the Canadian embassy in the country that I am travelling to, but she is not certain if the Embassy will grant me the visa, and that my second option is to take a visa to the U.S and drive there and that in that way the Canadian immigration will not know that I had left the territory.

I asked her, from what I understand, is as if you are telling me to manipulate the system by going secretly to the U.S( actually I don't have a visa yet), or to travel overseas and get stuck in a country with no way of returning back.

In fact, this is very frustrating. There was a woman speaking on TV that there are 18 thousand applications pending since 2015 and that the whole problem is due to the lack of staff in the immigration department and she said that this situation will get worse especially after the announcement of accepting the reception of more that 1 million immigrants and refugees within the 2 coming years.

This can only be explained as being very unfair and a message that is irresponsible.

Dpenabill, I consider you an expert (even though you claim not be), I can not lose my job what so ever, do you think that I would be granted a PRTD to come back to Canada after I finish my work overseas?

Thank you

I am sympathetic for your difficult situation, but it is largely what it is. There is no way getting around the non-routine nature of your case. And non-routine cases tend to take a lot, lot longer time to resolve. Some more than others.

It is not clear how much of my previous responses you have read. You were more than cutting-it-close.

So sure, the situation is frustrating. To be clear, though, this is not about IRCC failing to properly do its job. And this is likely to be resolved much, much faster than a great deal of civil litigation ordinarily takes. The wheels of justice tend to turn rather slowly. Things tend to go a lot, lot more smoothly, and thus more quickly, when there are NO wrinkles to iron out. Again, you were more than cutting-it-close. so there are some serious wrinkles to iron out. It is what it is.

I realize how important your employment is to you, but it appears that keeping PR status is also of much importance to you. To the extent one may be incompatible with the other, which of these is the higher priority to you is a personal choice.

In any event, it is not surprising you have encountered some difficulty and non-routine processing, and thus a much longer processing timeline, given the extent of your absences from Canada. As I previously noted, it appears you were LUCKY IRCC did NOT proceed to process your PRC application sooner. You should not underestimate the risk you have taken.

Remember, some long-term participants here have specifically forecast that your PRC application will be denied and IRCC will begin the process to terminate your PR status. I have concluded otherwise, and stated my reasons, but those views are at least indicative of how seriously you have risked losing status.

So you are hardly in a position to demand expedited processing at this juncture.


This part of your post warrants some clarification:

"The agent told me that I could leave and then apply for a PRTD from the Canadian embassy in the country that I am travelling to, but she is not certain if the Embassy will grant me the visa, and that my second option is to take a visa to the U.S and drive there and that in that way the Canadian immigration will not know that I had left the territory.

I asked her, from what I understand, is as if you are telling me to manipulate the system by going secretly to the U.S( actually I don't have a visa yet), or to travel overseas and get stuck in a country with no way of returning back."​

Traveling via the U.S. is NOT "manipulating" the system. Canada does NOT attempt to regulate a PR's international travel. Obviously, a PR with status allowing travel to the U.S. can travel to the U.S. A PR in the U.S. can return to Canada via private land transportation without either a PR card or a PR Travel Document and do so without skirting any Canadian laws or rules or regulations or policies. This is well known and readily understood.

The call centre agent was kind enough to offer a suggestion which many probably would not. Which is to let you know that a PR can enter Canada from the U.S., via a land crossing, without a valid PR card or a PR TD. This is something often observed in this forum. Very often. Again, this does NOT involve skirting any Canadian laws or rules or regulations or policies. This would not be manipulating the system.

There is NO law, regulation, policy, rule, or practice which requires a PR to present a PR card or PR TD in order to enter Canada. On the contrary, a PR does not need to show any particular documentation to enter Canada, but is statutorily entitled to enter Canada . . . of course the PR needs to establish identity and status, regarding which a passport will usually suffice but better to have something also indicating status like the CoPR or an expired PR card, and other Canadian ID can help, like a Canadian drivers license.

To fly to Canada, a PR needs a valid PR card or a PR TD. So the call centre agent appropriately informed you that if you travel abroad you can obtain a PR TD to make the return trip to Canada by air. Of course you must meet the eligibility requirements for a PR TD. Which mostly means, if you apply for a PR TD, you will need to submit documentation with the PR TD application sufficient to:

-- establish identity
-- show you are a PR (copy of CoPR or alternative documentation such as a Verification of Status)
-- show you have met the PR Residency Obligation (show 730+ days in Canada within the five years preceding date of the PR TD application)​

I have previously addressed factual-question issues for any PR who has been cutting-it-close. So sure, given the fact that you have mostly been outside Canada for the last five years, that increases the risk that IRCC will assess the facts in your case with some degree of skepticism. If you can and do readily document more than 730 days presence within the preceding five years, again as of the day you make the PR TD application, odds are good you will receive a PR TD . . . but how long the processing might be will vary considerably with factors like which visa office is involved and just how clear it is you are in compliance with the RO. Even if the PR TD is denied, you then would appeal and be eligible for a special TD to come to Canada pending the appeal.

How long you are abroad during your trip can be a significant factor. Obviously, the longer you are abroad the more it might appear to a total stranger bureaucrat that you actually live abroad, leading to elevated scrutiny and perhaps overt skepticism.

If you can document your 800 plus days in Canada during the last five years, and the trip abroad is not particularly lengthy (and you do not lose too many days due to some falling out of the calculation for being more than five years ago), my GUESS is that the risk of having to appeal a PR TD denial is relatively low. That is, I'd guess you will have no problem getting a PR TD (assuming you properly complete the application and document meeting the RO as of the day you make the application). Probably best to make the PR TD application very soon after arriving abroad. This might actually help propel the processing of your PRC application.

BUT OVERALL your situation is what it is. You did more than cutting-it-close. So you are in something of a bind. You have some tough decisions to make. This really is NOT a who-is-to-blame situation. It is what it is. IRCC has a mandate to enforce the law and regulations. Your situation makes that a NON-routine process.


As for all the other very lengthy immigration related processing times, those have little relationship to your situation. Your PRC application is non-routine for rather obvious reasons.

 

[canuck78]

Hello dpenabill

Yesterday I called the immigration department to try to find out any information regarding my application for the PR, I waited 40 minutes and thought that I would get an answer. After waiting, one of the agents replied and asked for some info about me.

To my big indescribable surprise, she told me that my application began to be reviewed on 24 January 2019 and from this date I should start counting 62 working days, I answered her that this is unfair especially that I received an email telling me that they started processing my application on 24 October 2018.

I told her that I have to travel overseas for the Canadian company that I work for in Canada and that I already had an oral warning from my employer that if there was no way to travel, they will be forced to find someone else to do my job.

The agent told me that I could leave and then apply for a PRTD from the Canadian embassy in the country that I am travelling to, but she is not certain if the Embassy will grant me the visa, and that my second option is to take a visa to the U.S and drive there and that in that way the Canadian immigration will not know that I had left the territory.

I asked her, from what I understand, is as if you are telling me to manipulate the system by going secretly to the U.S( actually I don't have a visa yet), or to travel overseas and get stuck in a country with no way of returning back.

In fact, this is very frustrating. There was a woman speaking on TV that there are 18 thousand applications pending since 2015 and that the whole problem is due to the lack of staff in the immigration department and she said that this situation will get worse especially after the announcement of accepting the reception of more that 1 million immigrants and refugees within the 2 coming years.

This can only be explained as being very unfair and a message that is irresponsible.

Dpenabill, I consider you an expert (even though you claim not be), I can not lose my job what so ever, do you think that I would be granted a PRTD to come back to Canada after I finish my work overseas?

Thank you

Just warning you that call centre employees give out incorrect information all the time and can only interpret what is on their screens. I would cross my fingers and hope they are right but not count on it 100%.

 

[Ninio]

I am sympathetic for your difficult situation, but it is largely what it is. There is no way getting around the non-routine nature of your case. And non-routine cases tend to take a lot, lot longer time to resolve. Some more than others.

It is not clear how much of my previous responses you have read. You were more than cutting-it-close.

So sure, the situation is frustrating. To be clear, though, this is not about IRCC failing to properly do its job. And this is likely to be resolved much, much faster than a great deal of civil litigation ordinarily takes. The wheels of justice tend to turn rather slowly. Things tend to go a lot, lot more smoothly, and thus more quickly, when there are NO wrinkles to iron out. Again, you were more than cutting-it-close. so there are some serious wrinkles to iron out. It is what it is.

I realize how important your employment is to you, but it appears that keeping PR status is also of much importance to you. To the extent one may be incompatible with the other, which of these is the higher priority to you is a personal choice.

In any event, it is not surprising you have encountered some difficulty and non-routine processing, and thus a much longer processing timeline, given the extent of your absences from Canada. As I previously noted, it appears you were LUCKY IRCC did NOT proceed to process your PRC application sooner. You should not underestimate the risk you have taken.

Remember, some long-term participants here have specifically forecast that your PRC application will be denied and IRCC will begin the process to terminate your PR status. I have concluded otherwise, and stated my reasons, but those views are at least indicative of how seriously you have risked losing status.

So you are hardly in a position to demand expedited processing at this juncture.


This part of your post warrants some clarification:

"The agent told me that I could leave and then apply for a PRTD from the Canadian embassy in the country that I am travelling to, but she is not certain if the Embassy will grant me the visa, and that my second option is to take a visa to the U.S and drive there and that in that way the Canadian immigration will not know that I had left the territory.

I asked her, from what I understand, is as if you are telling me to manipulate the system by going secretly to the U.S( actually I don't have a visa yet), or to travel overseas and get stuck in a country with no way of returning back."​

Traveling via the U.S. is NOT "manipulating" the system. Canada does NOT attempt to regulate a PR's international travel. Obviously, a PR with status allowing travel to the U.S. can travel to the U.S. A PR in the U.S. can return to Canada via private land transportation without either a PR card or a PR Travel Document and do so without skirting any Canadian laws or rules or regulations or policies. This is well known and readily understood.

The call centre agent was kind enough to offer a suggestion which many probably would not. Which is to let you know that a PR can enter Canada from the U.S., via a land crossing, without a valid PR card or a PR TD. This is something often observed in this forum. Very often. Again, this does NOT involve skirting any Canadian laws or rules or regulations or policies. This would not be manipulating the system.

There is NO law, regulation, policy, rule, or practice which requires a PR to present a PR card or PR TD in order to enter Canada. On the contrary, a PR does not need to show any particular documentation to enter Canada, but is statutorily entitled to enter Canada . . . of course the PR needs to establish identity and status, regarding which a passport will usually suffice but better to have something also indicating status like the CoPR or an expired PR card, and other Canadian ID can help, like a Canadian drivers license.

To fly to Canada, a PR needs a valid PR card or a PR TD. So the call centre agent appropriately informed you that if you travel abroad you can obtain a PR TD to make the return trip to Canada by air. Of course you must meet the eligibility requirements for a PR TD. Which mostly means, if you apply for a PR TD, you will need to submit documentation with the PR TD application sufficient to:

-- establish identity
-- show you are a PR (copy of CoPR or alternative documentation such as a Verification of Status)
-- show you have met the PR Residency Obligation (show 730+ days in Canada within the five years preceding date of the PR TD application)​

I have previously addressed factual-question issues for any PR who has been cutting-it-close. So sure, given the fact that you have mostly been outside Canada for the last five years, that increases the risk that IRCC will assess the facts in your case with some degree of skepticism. If you can and do readily document more than 730 days presence within the preceding five years, again as of the day you make the PR TD application, odds are good you will receive a PR TD . . . but how long the processing might be will vary considerably with factors like which visa office is involved and just how clear it is you are in compliance with the RO. Even if the PR TD is denied, you then would appeal and be eligible for a special TD to come to Canada pending the appeal.

How long you are abroad during your trip can be a significant factor. Obviously, the longer you are abroad the more it might appear to a total stranger bureaucrat that you actually live abroad, leading to elevated scrutiny and perhaps overt skepticism.

If you can document your 800 plus days in Canada during the last five years, and the trip abroad is not particularly lengthy (and you do not lose too many days due to some falling out of the calculation for being more than five years ago), my GUESS is that the risk of having to appeal a PR TD denial is relatively low. That is, I'd guess you will have no problem getting a PR TD (assuming you properly complete the application and document meeting the RO as of the day you make the application). Probably best to make the PR TD application very soon after arriving abroad. This might actually help propel the processing of your PRC application.

BUT OVERALL your situation is what it is. You did more than cutting-it-close. So you are in something of a bind. You have some tough decisions to make. This really is NOT a who-is-to-blame situation. It is what it is. IRCC has a mandate to enforce the law and regulations. Your situation makes that a NON-routine process.


As for all the other very lengthy immigration related processing times, those have little relationship to your situation. Your PRC application is non-routine for rather obvious reasons.

Hello dpenabill

Today I received a letter, it was sent to me on the 24th of January 2019

" This letter concerns your application for a Permanent Resident Card.

I have reviewed your application, and have determined that you are in compliance with the requirements to be issued a Permanent Resident Card pursuant to paragraph 59(1)(c) of the immigration and refugee protection regulations.

Your application is being referred back to the Case Processing Centre in Sydney to proceed with the issuance of your Permanent Resident Card.

Once ready, the card will either be mailed directly to your residential address, OR you will be requested to collect it in person.

If you have not received your Permanent Resident Card(or a letter inviting you to collect your card) in 60 days from the date of this letter, or if you wish to inform us of a change of address, you can contact us by visiting ….."

I guess this means that all is correct 100% and nothing is missing in my application.

Excuse my question again, in case I travelled to finish the job for my employer and was asked when i am overseas to collect my card in person, can I use this letter at the Canadian embassy as a leverage in order to obtain the PRTD?

Thanks again dpenabill for your help, I still insist "you are an expert"
Thank you also Canuck

 

[dpenabill]

Your application is being referred back to the Case Processing Centre in Sydney to proceed with the issuance of your Permanent Resident Card.

Once ready, the card will either be mailed directly to your residential address, OR you will be requested to collect it in person.

Good news. Congratulations.

Did I mention anything about the wheels of justice turning slowly? So far the emphasis has been on how slowly. But as you can now discern, that they do TURN also warrants emphasis. IRCC is a big, cumbersome machine, but it gets where it is going, eventually.

Excuse my question again, in case I travelled to finish the job for my employer and was asked when i am overseas to collect my card in person, can I use this letter at the Canadian embassy as a leverage in order to obtain the PRTD?

Not really. But the decision-made in your PR card application will be readily apparent to the Visa Office when it accesses your GCMS and FOSS in the process of considering your application for a PR Travel Document. Along with the history. Which should readily back up the information you provide . . . up to the point the decision was made to issue you a new PRC. Which is to say the Visa Office will know of this decision and it will take the information into consideration.

But it is important to understand the main reason why the letter will carry rather little weight. The letter merely reflects the fact that you have PREVIOUSLY been examined for Residency Obligation compliance, and found to be in compliance. Whether you are eligible for a PR Travel Document will depend on showing you are in compliance with the RO ON THE DATE THE APPLICATION FOR A PR TD IS MADE. Which at this juncture is some date in the future.

That is, a determination you were in compliance in the past is relevant BUT the Visa Office is required to evaluate your compliance with the PR RO as of the date you make the application for the PR TD.

Note, too, that a PR abroad without a valid PR card in possession is PRESUMED to not have valid PR status. This is fairly easily rebutted by evidence documenting compliance with the PR RO, but it imposes a MANDATE on the Visa Office to review and verify compliance.

IN particular, Section 31(2)(b) IRPA (see https://laws-lois.justice.gc.ca/eng/acts/I-2.5/page-8.html#h-21 ) states:

". . . unless an officer determines otherwise . . . a person who is outside Canada and who does not present a status document indicating permanent resident status is presumed not to have permanent resident status."​

Moreover, REMEMBER that when you next arrive at a PoE while returning to Canada, IF a PoE officer conducts a PR RO compliance examination that too will be an independent calculation based on your presence within the FIVE YEARS immediately preceding the day of that PoE examination. The validity dates on a PRC are NOT relevant when PR RO compliance is being calculated. Even if the PRC is brand new, that has no relevance when RO compliance is being calculated. (That said, presenting a relatively recently issued PRC can influence whether a PoE officer decides to make RO compliance inquiries.)


As for expertise: Emphasizing the fact that I am NOT an expert is more than a pro forma disclaimer. I really am NO expert. Truly NOT by a long shot!

What I have posted above is not much different than what I have posted DOZENS, perhaps many dozens of times, in the last several years. Little expertise is required to REPEAT bits and pieces that one has learned about a few particular issues. Sure, I have done quite a lot of homework about residency and presence related issues. So I am well familiar with a few particular aspects of IRCC policies and practices related to these particular issues. And I have some longstanding experience reading and analyzing legal information which I can apply to these isolated bits of information. But I am NOT a Canadian lawyer and have NEVER been professionally engaged in any aspect of immigration matters. That matters and it matters a lot.

Example: Scores and scores of Federal Court decisions and IAD decisions make it clear, absolutely clear, that credit toward compliance with the PR Residency Obligation for time abroad while employed by a Canadian business is an EXCEPTION in compliance with the RO generally. I would NEVER have gotten that from reading the law itself. On its face section 28(2)(a) IRPA does NOT distinguish days present in Canada as having any more weight than days "outside Canada employed on a full-time basis by a Canadian business." As much experience as I have reading, analyzing, and interpreting law (yes I have a lot of such experience regarding law in OTHER jurisdictions, NOT Canadian law), I would NOT have had a clue about how this provision is interpreted in Canada. But fortunately there are scores of sources which have made it clear this is approached as an EXCEPTION . . . so I have done some more homework about it, and learned more about the nuances in interpreting this one particular provision, and become aware how narrowly and strictly this provision is applied. So like a clever monkey I can now recite a fair amount of information about this ONE PARTICULAR issue . . . BUT as much as I know about it, I realize I do NOT have a clear idea about how PoE or Visa Office or Local IRCC offices practically approach this issue. I know how the IAD and Federal Courts approach it. This falls way, way short of being an expert. And this is in regards to just ONE particular issue (an issue which I have studied in depth). Apart from the small number of particular issues I follow closely, and about which I make a concerted effort to share what I know, I actually have very little knowledge about many, many, many other aspects and issues which affect the lives of PRs in Canada.

I really am NO expert. Not by a long, long shot. I try to avoid relying on personal authority (my posts go long in part because I make a concerted effort to include enough information so they stand on their own, without regard to me as a source) but in regards to this one fact, that I really am NO expert, regarding this I will say: TRUST ME.