Msafiri already gave a good answer to your original query, regarding the availability of credit toward the PR RO while working abroad for a Canadian employer, and posted it while I was drafting a similar response . . . and for some reason I encountered difficulty posting this response.
I am posting mine nonetheless for emphasis. There is a temptation to understate how strictly this credit
could be applied.
ZingyDNA might be correct about being fine if employed by "a relatively big Canadian company with formal US branch." But that is far from certain.
Thus, my response to the original query:
charger01 said:
Am working in Canada for Company X, it has a US branch as well and they are offering a transfer to their US branch for few years. Can this time be used to fulfill PR obligations in terms of time i spent in US. I understand that it will not be counted for citizenship but will it be counted to maintain PR?
There is no short, simple answer regarding the credit toward compliance with the PR Residency Obligation for time periods a PR is employed abroad for a Canadian business.
The statutory provision itself (Section 28.(2)(iii) IRPA) seems simple enough (and is quoted below). But in practice it is applied in a manner heavily-laden with restrictive criteria. In recent years, the credit has become so restrictive it is difficult to identify a scenario in which it would apply to a PR who otherwise did not already comply with the PR RO by virtue of time physically present in Canada.
In particular, in the last few years CIC has been limiting the credit to
temporary assignments, which raises the question whether a
"transfer" would qualify.
CIC has also required that the
assignment be controlled from a head office in Canada, which also raises some doubt about whether a transfer, especially one which involves the employee to be working under the direction of an office abroad, will qualify.
Frankly, if it is likely that the work abroad will result in being abroad more than 1095 days within a five year time period, it would be a good idea to at least consult with an experienced immigration lawyer and, to be confident in the lawyer's opinion be sure that the lawyer is familiar with the criteria currently set out in the Operational Manual ENF 23 "Loss of Permanent Resident Status", in section 6.5 (on page 17). That is, be sure that these criteria are discussed and considered in particular. (Some lawyers may look up the statute and overlook how it is actually being applied; most lawyers not familiar with this off the top of their heads, should at least look at both the statute (Section 208 IRPA) and the Regulation (section 61), but it is nonetheless a good idea to focus attention on the specific criteria specified in section 6.5 of the Operational Manual ENF 23 "Loss of Permanent Resident Status."
In particular, ENF 23 "Loss of Permanent Resident Status" states the criteria CIC has been using to assess whether a PR is entitled to credit toward compliance with the PR Residency Obligation based on being employed by a Canadian business. It states:
6.5 Employment outside of Canada
The regulations enable permanent residents to comply with the residency obligations while
working abroad, provided that:
-- they are under contract to, or are full-time employees of a Canadian business or in the
public service, where the assignment is controlled from the head office of a Canadian
business or public institution in Canada;
-- they are assigned on a full-time basis as a term of their employment or contract, to a
position outside Canada with that business, an affiliated enterprise or a client;
-- they maintain a connection to a Canadian business;
-- the are assigned on a temporary basis to the work assignment; and
-- they will continue working for the employer, in Canada, after the assignment.
In contrast, the
governing statutory provision (section 28.(2)(iii) IRPA) states, in effect, that days count toward the PR RO if the PR is
"outside Canada employed on a full-time basis by a Canadian business."
The
applicable Regulation (section 61.(1)) states, in relevant part, for the purposes of the provision giving credit for time abroad employed by a Canadian employer, that a Canadian business is:
(a) a corporation that is incorporated under the laws of Canada or of a province and that has an ongoing operation in Canada;
(b) an enterprise, other than a corporation described in paragraph (a), that has an ongoing operation in Canada and
(i) that is capable of generating revenue and is carried on in anticipation of profit, and
(ii) in which a majority of voting or ownership interests is held by Canadian citizens, permanent residents, or Canadian businesses as defined in this subsection; or
(c) an organization or enterprise created under the laws of Canada or a province.
Section 61 of the Regulations further states:
(2) For greater certainty, a Canadian business does not include a business that serves primarily to allow a permanent resident to comply with their residency obligation while residing outside Canada.
(3) For the purposes of subparagraphs 28(2)(a)(iii) and (iv) of the Act, the expression “employed on a full-time basis by a Canadian business or in the public service of Canada or of a province” means, in relation to a permanent resident, that the permanent resident is an employee of, or under contract to provide services to, a Canadian business or the public service of Canada or of a province, and is assigned on a full-time basis as a term of the employment or contract to
(a) a position outside Canada;
(b) an affiliated enterprise outside Canada; or
(c) a client of the Canadian business or the public service outside Canada.
Note: The flaw in the plan, for many PRs who go abroad to work with a plan to return to live in Canada in time to preserve PR status, is that life gets complicated,
stuff happens, this or that puts off the return date, and then an urgent situation arises compelling the PR to remain abroad even longer, or to go abroad again not so long after returning to Canada. Two years is not cutting it too close. Beyond that, and especially approaching three years, would be cutting it close.
The Operational Manual
ENF 23 "Loss of Permanent Resident Status" is linked here.
