lookn said:
I'm a U.S. citizen from Detroit and I met a Canadian man from Windsor and we married and I started living most of the time in Canada. However, I kept my house in the U.S. and visited it every week or two. (I don't work, I'm retired.) Each time I returned to Canada, I assume I was allowed in for 6 months as a visitor. Later, I applied for PR (thru Buffalo) which I received in 2012. Now I want to apply for citizenship, but I need to use the time before I received PR (2011), which I read counts as half-days. I have utility bills and bank statements in my name at my Canadian address from that time.
The CANADAVISA FAQ states:
"Citizenship and Immigration Canada recognizes time spent legally in Canada prior to becoming a Canadian Permanent Resident towards the calculation of the 1095 days required to qualify for Canadian Citizenship. Within the four years prior to applying for Canadian Citizenship, each day spent in Canada as a non-Immigrant (i.e. as a visitor, international student, temporary worker) is counted as half a day, up to a maximum total credit of one year. Each day spent in Canada as a Permanent Resident is counted as one whole day."
I know that some people claim that a visitor can only stay in Canada for 6 months total per year, while other state it is 6 months PER ENTRY. I can't find anything official that limits it to 6 months PER YEAR.
What do you think? Any problem with counting 2011?
There is no clear, definitive short answer.
Well, except, to wait and apply with 1095+ days of actual physical presence
after landing would have significantly less risk of delays due to additional document requests or RQ, and be a more certain path to citizenship. That is, if you can wait -- recognizing of course that the Bill C-24 amendments to Section 5(1) of the
Citizenship Act will come into force sometime in 2015, increasing the minimum actual physical presence requirement to 1460 days (within six years).
Ultimately, the residency requirement is, after all, a
residency requirement, and of course visitors typically are not
residents of Canada during a visit. That said, the approach to assessing
residency for citizenship is dominated by calculating days actually physically
present in Canada, and some Federal Court decisions have explicitly stated that "
resident in Canada" means being actually physically present in Canada.
Will CIC focus on and count the days physically present, even if the applicant was maintaining residence outside Canada during that time?
If CIC is not satisfied, might a Citizenship Judge nonetheless still focus on and count the days physically present, even if the applicant was maintaining residence outside Canada during that time?
Again, there is no clear, definitive short answer.
My best
guess is that how it goes in practice is likely to depend on a number of other factors. That is, my typical answer to many questions:
IT-DEPENDS!
At minimum, you will probably have to document dates of entry, valid status, and place in Canada where you were staying, face some elevated scrutiny, some delays in processing, and perhaps a significant degree of skepticism. What the ultimate outcome will be, however, cannot be reliably forecast.
Longer, more complicated discussion of this issue:
As I suggested, I suspect that at the least there is a high risk CIC will make a request for additional documents, and probably issue RQ, and approach the application with skepticism. That is, my sense is that it is likely you will encounter significant delays in processing time, be subject to elevated scrutiny, and will need to make a strong case in terms of documenting
where you were residing during the relevant time period . . . even if CIC will in fact count the time spent as a
visitor toward meeting the residency requirement.
There is, however, one particular element I think could loom very large, and that has to do with comparing the address history you declared in your PR visa application with what you declare in your citizenship application.
To be clear, no one has addressed what happens if an applicant lists their place of residence to be outside Canada for a certain period of time, but declares they were actually physically present in Canada during that same period of time. If the residency calculation is based on days physically present in Canada, would listing one's "residence" as outside Canada during that time negate including those days? I am not sure. At the least, though, that is probably going to trigger the long-haul version of a residency case ultimately going to a Citizenship Judge hearing. And, I suspect, the outcome will not be favourable.
I doubt anyone is inclined to submit such an application, an application in which they declare they are physically present in Canada but their place of residence is outside Canada.
The applicant who wants to get credit for time spent in Canada while a
visitor prior to landing, however, may indeed be confronted by this situation.
Leading more specifically to this --
Address history in PR visa application compared to address history in citizenship application:
If in your PR visa application you declared your
place of residence to be an address in Canada, and your address history declaring a Canadian place of residence covers the period of time you are seeking to be given credit for in the citizenship application, that probably helps your case considerably. (Not sure it will lead to a successful citizenship application, but it would probably help considerably.)
In contrast, if your PR application reflected you were residing at an address in the U.S., you should consider that to now declare you were residing in Canada during that time would be inconsistent.
One might ask: Which is CIC to believe?
The real concern, however, is that if CIC perceives the applicant has given information in a citizenship application that is inconsistent with previous information, such as in the PR visa application, what impact will that have on CIC's view of the applicant's credibility? The answer to this is rather predictable. Not good.
Thus, to my view this could be important in your situation, that is, whether you can consistently declare you maintained your residence in Canada for the time period prior to landing and for which you want credit toward the citizenship residency requirement.
Acknowledgment: There is no CIC source or Federal Court decision to cite which overtly indicates the significance of declarations made in a PR visa application compared to declarations made in the citizenship application. It is not certain CIC even compares the information submitted in the PR application process with that in the citizenship application. I doubt that they usually do. But I think the situation is different for an applicant seeking credit for time prior to landing. Moreover, there is a significant chance that GCMS itself will identify inconsistencies of this sort (if there is such an inconsistency).
Let me note your story is very similar to mine. I have analyzed this issue in depth, in great depth actually. I have probably analyzed the issue more thoroughly than any CIC officer or Citizenship Judge is likely to do, probably more than any lawyer paid to analyze it would. That said, I
cannot predict how CIC or a CJ will decide the issue in a particular case.
I have undoubtedly analyzed this issue more than reason warrants. And nonetheless, again, I
cannot predict how CIC or a CJ will decide the issue in a particular case.
I ultimately elected to wait, but my decision to wait was also influenced by other factors and there were no impending changes to the residency requirement to consider, and ultimately there was no rush at all for me to obtain Canadian citizenship.
In my situation, I listed where I was living in Canada as my address in my PR application, and listed it in the address history for a period prior to making the PR application. I had applied for an extension of my visitor status, and been issued a
visitor's record, likewise reflecting the place I was living (albeit temporarily, pending the outcome of my application for PR). So, I had both formal documentation of my status in Canada during that time, and I had declared I was living at a Canadian address (my spouse's home of course).
I still wrestled with the question about whether or not CIC would give me credit for that time in my citizenship application, but at least my address history as to where I was actually living would be consistent in both applications (in my PR application I had clarified, on a separate sheet of paper, that I still had a "residence" in the U.S. although presently living with my spouse in Canada), in addition to having the formal documentation of status (the
visitor's record). Nonetheless, as I said, I elected to wait, for other reasons (and then I procrastinated a fairly long while as well).
Toward some sort of conclusion:
-- CIC's predominant approach to assessing residency is based on where a person was physically located; that is, based on place a person was physically present. This tends to favour prospect of being given credit for time spent in Canada even as a visitor.
-- CIC will want documentation of status and unless you had an in-Canada application pending prior to landing, were issued a visitor's record, or otherwise issued a TRV, this could present some difficulties, and this distinguishes the visa-exempt visitor's situation from that of individuals in Canada based on work or study permits (whose status is directly documented).
-- My impression is that it would be a bad idea to declare place of residence inconsistent with declarations as to place of residence in any other application made to CIC; an applicant's credibility is probably the most important element other than, of course, the specific qualifying elements.
-- How close you come to meeting the residency requirement based on presence after landing may be a factor. Hard to guess what weight CIC puts on factors like this, but for someone who is clearly settled down in Canada, for whom the facts generally lean heavily in favour of
deserving citizenship, my guess is that CIC is not looking for reasons to question let alone deny citizenship, and this may help quite a bit to tip the scales favourably.
