Short answer:
I am no expert. Further below I will explain the basis for my view.
But my opinion is that in the scenario you describe you should be allowed the credit for the
employed-abroad-by-Canadian-business exception to the PR Residency Obligation to be present in Canada at least 731 days within five years.
Caution: this observation has caveats. This exception is narrowly interpreted and strictly applied. The extent to which you are otherwise clearly and
permanently settled and living in Canada can affect how IRCC perceives and assesses the facts, and what inferences are made. The extent to which it is clear that your employer is a Canadian business operating a business in Canada is an important factor.
Raj chandigarh said:
I am PR since 2013 but recently entered in canAda in 2016 with just 2.5 yrs in hand to complete pr obligation
. I have got a job of truck driver and I observe that I spend almost 5 days a week on USA route in USA. Though I am working for Canadian company I wonder if these days ll be counted towards renewal of my PR card. Shall I be in some trouble for being absence while on job.
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I would like to be more clear
1 I am working for a Canadian company have office only in Canada
2 I am a full time employee of that company
3 I am paid in Canada and taxes are deducted as per Canadian norms
4 I pick load every Monday from BC home town for USA and came back every Thursday or Friday
5 I am permanent employee just like other employees of Canada
So I am taking about PR card renewal . . .
Short answer redux:
My sense, again: not a problem.
But it will be prudent to approach this cautiously, carefully.
The longer explanation:
Not a problem. That is, in the scenario you describe, my sense is you will be allowed credit toward the PR Residency Obligation for the time you are traveling in the U.S. on behalf of a Canadian employer. There are some caveats attached to this observation. In particular, again, this credit tends to be narrowly interpreted and strictly applied. Every piece of the puzzle must be in place, making up a complete picture of employer, employee, and employment respectively fitting into the precise elements of this limited exception to the obligation to be physically present in Canada. Contextual circumstances, for example, can make a difference, such as just how well settled you are in Canada versus the nature and extent of continuing ties outside Canada.
This view is consistent, I think, with that expressed by
PMM, but it is contrary to the view expressed by
scylla.
scylla said:
No - the time you spend in the US working cannot be counted towards your residency requirement. It will be counted as time spent outside of Canada. In order for this time to count towards RO, your company would have to have relocated you to a permanent job outside of Canada.
But that view is clearly erroneous, since the job outside Canada must be a
temporary assignment and NOT a permanent job.
But more to the point, the credit is
NOT based on the employee being
relocated, but rather, again, it is based on the employee being
temporarily assigned to do work abroad.
That said, there is potentially a wrinkle in regards to the part of the applicable regulation (
Regulation 61(3), in the Immigration and Refugee Protection Regulations), which prescribes that to qualify for the credit the PR must be:
"assigned on a full-time basis as a term of the employment or contract to a position outside Canada."
The wrinkle, rather the potential wrinkle, is whether or not the assignment to drive into the U.S. to deliver a load constitutes being "assigned on a full time basis . . . to a position outside Canada."
Since in the scenario here it is clear the OP is
employed on a full time basis by a Canadian business, and the time abroad is pursuant to an assignment to do the work abroad (to drive and deliver a load abroad), I can see little or no likelihood of a problem . . . unless there are other factors leading IRCC to have a rather unfavourable view toward the PR and is looking for technicalities to justify not allowing the credit. But even if the latter happened, hard to imagine the IAD (let alone a Federal Court) parsing the Regulation so as to not credit this time, acknowledging, however, that if the other factors include serious credibility concerns, then IRCC, including a panel at the IAD, may twist and turn things to justify a negative decision if possible.
Indeed, it is difficult to imagine a scenario fitting the statute itself any better. Moreover, similarly as to the
temporary assignment element in the Regulation, it is difficult to imagine a more applicable scenario than being assigned to deliver a load of goods to a destination outside Canada, and then return to Canada.
Indeed, my sense is that such employment, as the OP describes, is among the few scenarios for which the exception, the employed-abroad credit as stated in the statute itself, will actually apply, and perhaps is more or less one of the kinds of employment it is intended to apply to (but again noting there are caveats).
Airline pilots and flight attendants employed by Air Canada, based at a location in Canada but flying routes that regularly entail being abroad most of their working time, would be a similar scenario, and covered by the exception.
The fact that there are fifty or so three day assignments abroad each year is substantively no different than two or three long assignments abroad in the course of five years. Moreover, in this scenario the continued connection to employment in Canada by a Canadian business is clear, well established.
And the fact that this employment is totally consistent with the intent and purpose of the PR RO, that is to require PRs to develop and maintain real ties to a life in Canada, should weigh very heavily in the PR's favour.
One of the caveats:
A big caveat is that ordinarily someone engaged in this employment
will NOT need the exception, the credit. After all, in the scenario you describe, the trucker is outside Canada only
two days a week some weeks (in Canada Monday and back in Canada Thursday, just Tuesday and Wednesday not present in Canada), and just three days a week other weeks (back by Friday). At the most that should add up to 150 days absent a year, less than 750 total over the course of five years, well enough short of the 1095 days absent which would amount to a breach of the PR's RO, and thus resulting in more than a thousand days present in Canada over the course of five years, which should constitute a comfortable enough margin over the PR RO minimum.
But you are starting, in effect, in the hole, starting with a big period of absence. Depending on just how much time you have been abroad since landing, and depending on how soon after arriving in Canada you started this schedule, and depending on the extent to which it is three days abroad rather than two, and subject to how many times the return trip on Fridays does not really get you back through the PoE into Canada before midnight on Fridays (clearing the PoE five minutes after midnight Friday night would mean four days abroad that week), you could reach the 1095 days physically outside Canada mark in the not so distant future. Once you reach that mark, it will
appear you are in breach of the PR RO.
To be clear, once a PR is absent from Canada 1095 days within the first five years since landing, the PR is in breach of the PR RO. Thus, for example, a PR may be reported as inadmissible at the PoE even though the PR's status card, the PR card, is still valid for another year. CBSA does not have to wait until the PR card is expired. (In fact, validity date of PR card is totally irrelevant.)
So, once you have been physically absent from Canada for 1095 days since you landed, it will
appear you are in breach of the PR RO, and if questioned about your compliance with the PR RO, you will need to affirmatively show you are entitled to the credit allowed pursuant to the
employed-abroad-by-Canadian-business exception. And for sure this will be what you will need to do as you approach the date your PR card expires and need to apply for a new PR card.
Thus, be sure to carry your complete logs, or copy of past logs in addition to ongoing logs, and be prepared to document where you live and so on. Probably no problem or concerns about PR RO will arise, but you will want to be prepared in case they do.
Good news is that regularly crossing the border helps.
Frequent border crossings actually help. They tend to illuminate the extent to which the PR has ongoing ties in Canada and is in Canada, and particularly where it is readily apparent that the PR is returning to Canada (such as driving a Canadian registered vehicle owned by a Canadian business, in the course of employment for a Canadian business), such trips tend to show a life being lived in Canada.
Thus, if you are now actually settled in Canada permanently, and your future absences are just these weekday delivery runs for a Canadian company, with minimal other additional days of absence,
my sense is that you are not going to have a problem with the PR RO.
Explanation as to what my view is based on:
As a general proposition, to be clear, my interpretation is that a PR
permanently settled and living in Canada, employed in Canada by a Canadian business (independent of family or friends of the PR, a truly Canadian business), operating out of a location in Canada, driving truck on routes into the U.S. but routes
originating in Canada, managed by a dispatcher in Canada, should have no problems getting credit, toward the PR Residency Obligation, for the time driving in the U.S.
This view is based on the following:
-- the statutory provision, which is Section 28(2)(a)(iii) IRPA http://laws-lois.justice.gc.ca/eng/acts/I-2.5/page-7.html#h-19
-- the applicable Regulation, which is Regulation 61, including 61(3) in particular http://laws-lois.justice.gc.ca/eng/regulations/SOR-2002-227/page-12.html#h-29
-- Operational Manual ENF 23 Loss of Permanent Resident Status, sections 6.5 and 7.4 in particular http://www.cic.gc.ca/english/resources/manuals/enf/enf23-eng.pdf
-- understanding based on reading scores of related IAD decisions, which can be found (by a relatively easy search) at the CanLII website http://www.canlii.org/en/ca/irb/
-- common sense combined with more than a little actual experience studying and analyzing jurisprudence (but note, I am not a Canadian lawyer)
Regarding the IAD and Federal Court decisions: I have seen no case or decision in which such time has been denied credit, or for that matter, which addresses this situation. This is no guarantee, but it is significant, and tends to suggest (as I read these things) that the issue has not come up because there is no problem. And that is my general sense: ordinarily neither CBSA nor IRCC will have any problem with the OP's scenario (subject to the caveats I discuss).
The oil rigger cases are the closest I am familiar with. No problem if the PR is based in Canada, employed by a Canadian company, working a rotation on a rig abroad. No credit at all, however, if the company is not Canadian (and remember: what constitutes a Canadian business is also narrowly and strictly applied -- just being organized in Canada or having a location in Canada is not enough).
Additional Caveat: Appearance of being permanently settled in Canada.
Appearance. Impression. The illusive but profoundly important,
deserves credit, the
deserves to keep PR status factor.
This is not a peripheral element. This is actually incredibly important.
The actual details, the specific facts, they matter. A lot. But as many of those whining about being bogged down in Secondary Review discover (if they pay attention), the technicalities are a two-edged sword. And which edge of the sword is doing the cutting will in very large part depend on how things appear, what impression IRCC has about the PR, the extent to which the PR looks like an immigrant settled down and living a life in Canada, and is thus
permanently residing in Canada.
This is closely related to the caveat I already discussed above, regarding the fact that the OP even needs a credit for this time given the extent of additional absences.
In particular, as I already noted, the scenario described by the OP should not even raise any issue about compliance with the PR Residency Obligation. A truck driving position which entails at most a Monday to Friday run into the States should result in a maximum 150 days a year abroad, a total 750 days abroad in five years. No problem, then, since such a PR, if settled and permanently living in Canada, will have spent over 1000 days in Canada in any given five years. No need for any credit for the time driving in the States.
Thus, the PR who actually needs credit for those days spent driving into the States, obviously is in a scenario involving far more absence from Canada than merely those days spent driving a truck route during the week. The nature and extent of those additional absences could have a big influence.
This applies to the OP here: the truck-route scenario itself does not fully illuminate the PR's situation.
This does not alter my general assessment, which is that the OP should not have a problem. But it does qualify that observation.
The main qualification is that, foremost, the OP has come to Canada to settle permanently in Canada, and did so significantly before reaching the 1095 days abroad (since landing) threshold. Which is to say, that the OP's situation appears to be that of a new immigrant who has finally settled permanently in Canada. If, in contrast, other aspects of the OP's life indicate otherwise, that could invite a more skeptical, unfavourable approach to assessing compliance with the RO.
Another qualification is that there be minimal additional absences, at the least until the OP is in compliance with the PR RO without having to be allowed credit for the trips into the States.
Thus, for example, if a number of years from now the OP is again (or still is) in a situation where the OP's total amount of time outside Canada exceeds 1095 days in five years, the level of scrutiny and degree of skepticism, the tendency toward a less favourable assessment, the risk a more negative side of the technicalities sword making the cut, goes up considerably.
There are other appearance factors which can influence things.
Too many factors to begin enumerating even examples. Take just one: a PR whose circumstances continue to show strong ties abroad, thus weakening or compromising the impression the PR is actually
permanently settled and residing in Canada.
One other one: if there is any indication the employment is an arrangement designed to facilitate a PR getting credit for time abroad, that will tend to slash the
deserves to keep PR status factor and invite IRCC to cut with the unfavourable edge of that two-sided technicalities sword.
General Caveat:
Again, I am no expert. Again, for many years now IRCC has taken a very narrow and strict approach to allowing PR RO credit based on the
employed-abroad-by-Canadian-business exception.
It is an EXCEPTION and is applied as such.
The apprehension expressed by
ASAINI is a legitimate concern.
Nonetheless, so long as the OP is now actually settled in Canada, and there are minimal future absences beyond those spent driving truck on routes from Canada into the States, there should be no problem.
If in contrast it appears, for example, that the OP's residential ties to Canada are not permanent, or there are other reasons why IRCC might have the impression the OP does not deserve to keep PR status, how that "employed on a full-time basis . . . to a position outside Canada" element is interpreted and applied, to the OP's case in particular, could become the fulcrum of a technical interpretation to justify a negative decision.
