PR obligation not met, Card still valid,

[toby]

Leon:

You and I have a dialogue going on this topic in another thread.

But let me ask you here one of those questions.

If the border officer for any reason doubts that the permanent resident will be able to meet the residency quota (730 days) by the expiry date of the PR card, does to border officer have to let the resident into Canada?

If yes, once in Canada, presumably the permanent resident must then prove compliance at an “examination”. What for does that examination take? Does the permanent resident send documents in to Immigration headquarters? Or is the examination an interview at a central building?

If no, then again, what form does the examination take (back in the home country), and where?

 

[Leon]

I do not really know. PMM might know but from what I have heard, the immigration officer will let the person in to Canada for 30 days and that is the time they get to prove their residency and appeal the loss of their PR status. I have not really heard of many people this has happened to except one woman who was trying to keep her PR status by going to Canada every couple of years and this happened to her during one of her trips. She came here to say that she was told to prove that she met the residency requirements and couldn't because she didn't but she did not come back to say what happened after that.

Why are you so fascinated by this? Just make sure you meet the residency requirements at all times and then you will not need to worry.

 

[toby]

I am interested because there may be couples with good reason to be abroad, at least for (say) 3-4 years, until they eventually settle full-time in Canada. For these couples, the PR spouse will not be able to meet the 730-day quota, unless he/she reies on the rule that if the spouse i s accompanying a Canadian sponsor-citizen, the days abroad can be coutned toward the quota.

The principle allowing such "deemed days" is in place, but the Devil is often in the details, hence my questions about how it might actually play out at the Canadian border. But it now appears (thanks for your previous answers, Karlshammer's and others' too) that if there is some doubt about the PR quota being met, the border guard must let the PR enter, who the has 30 days to prove compliance by means of providing other documents.

If my wife and I were to fall into this category (we don't plan to, but who can know the future?), it is better to what to expect before, not find out after by bumping into nasty surprises.

 

[PMM]

Hi

I am interested because there may be couples with good reason to be abroad, at least for (say) 3-4 years, until they eventually settle full-time in Canada. For these couples, the PR spouse will not be able to meet the 730-day quota, unless he/she reies on the rule that if the spouse i s accompanying a Canadian sponsor-citizen, the days abroad can be coutned toward the quota.

The principle allowing such "deemed days" is in place, but the Devil is often in the details, hence my questions about how it might actually play out at the Canadian border. But it now appears (thanks for your previous answers, Karlshammer's and others' too) that if there is some doubt about the PR quota being met, the border guard must let the PR enter, who the has 30 days to prove compliance by means of providing other documents.

If my wife and I were to fall into this category (we don't plan to, but who can know the future?), it is better to what to expect before, not find out after by bumping into nasty surprises.

No, they don't have 30 days to show compliance, they have 30 days to submit an appeal to the Immigration Appeal Division. If they don't, then the removal order issued at the time of the report becomes effective and the person would be removed from Canada. They can appeal on

a. The report is not valid in law in that they met the requirements
b. Or there are Humanitarian and Compassionate grounds why the appeal should be allowed.

PMM

 

[toby]

As usual, a useful clarification, PMM.

Assuming it takes (say) a year for the Immigration Appeal Division to render a decision, must the couple stay in Canada during that time, or risk (a high risk, perhaps) being barred the next time the PR tries to enter Canada?

 

[PMM]

Hi

As usual, a useful clarification, PMM.

Assuming it takes (say) a year for the Immigration Appeal Division to render a decision, must the couple stay in Canada during that time, or risk (a high risk, perhaps) being barred the next time the PR tries to enter Canada?

If the appellant leaves, they are executing their own removal order, not a very good idea.

PMM

 

[PARAMHAMS03]

This is a situation my son faced on his arrival at L.P. Airport. The following question that I addressed to Allan Thompson, Toronto Star and his response would present it better.


'My son has had permanent resident status since we first entered Canada in September 2006 but he has been living in the U.S. throughout as a student, visiting Canada on and off. The cumulative period of his stay in Canada is about three months.

The last time he visited was in September and, on the way, he was stopped at Pearson Airport and refused entry as a permanent resident but was allowed to enter as a visitor. The reason given was that, since he has been staying in the U.S. for the majority of the three-year period since September 2006, he had lost his permanent resident status. An "expired" stamp was affixed in the passport, whose meaning and implications I do not understand.

He is earning a PhD and would not be able to move to Canada until it is finished, at least another year. When he contacted the immigration department through a community organization, he was given contradictory information. He was told his permanent resident status could not be revoked before the completion of a five-year period since the date of his first entry into Canada and that he would continue to have the privilege of travelling back and forth between U.S. and Canada till then. This information was provided over the phone, so my son is uncertain where things stand.

My question is whether he is going to be allowed to enter Canada next time he decides to visit us.


RESPONSE THAT I RECEIVED FROM ALLAN THOMPSON

While your son's attempt to better his education and obtain a PhD is laudable, the rules about being a permanent resident of Canada are clear. A few years back, the government changed the rules to allow permanent residents to spend more time outside of Canada working or studying. Within any given five-year period, a permanent resident of Canada must have been "physically present in Canada for a minimum of 730 days within the past five years." That would mean being in Canada for the equivalent of two years.

Permanent residents who have not yet been in Canada for five years can be asked to demonstrate they will likely be able to meet the minimum of 730 days in the country at the five-year mark. In your son's case, it sounds as if an immigration officer decided that given, that he is studying abroad and is not close to finishing his program – and his having been here the equivalent of only three months in three years – he is unlikely to meet the 730-day threshold when he reaches five years as a permanent resident, in September 2011.

It would seem that your son has been deemed, on technical grounds, to be in violation of the residency rules. But, like you, I am puzzled about the notation in his passport. Because this matter is likely to get complicated, your son should seek professional advice right away. When a permanent resident is deemed to have been outside of Canada too long, the case is usually referred to the Immigration and Refugee Board. If that hasn't happened in your son's case, he should take the initiative and try to clarify what his status is and what the actions of the border agent in September really mean.

Your son could do this by visiting the nearest Canadian consulate or border point of entry. Better to find out now what this means than to wait until he is trying to enter Canada the next time.

The details of your son's status in the U.S. could also come into the equation here. Does he live in the U.S. on a student permit or does he hold a green card, the U.S. equivalent of permanent residence? You can't be a permanent resident of two places.

 

[Leon]

They should not have cancelled his PR status unless he had already failed to meet the residency requirements but he also had 30 days to appeal their decision and apparently didn't. However, even if he had, like you said, he has no immediate plans to move to Canada so he would lose it anyway.

He can still visit you as a tourist. If he does not need a visa to visit Canada, it should not be a problem as long as he can show ties in the US, that he will go back there. If he needs a visit visa to enter Canada, he should apply for one at a Canadian embassy/consulate in the US.

If he is a full time student since before the age of 22 without a break and not married, there would be a chance to sponsor him as a dependent child but I assume as a PhD student, he is already making his own money and is not really financially dependent on you any more. If you could show that he is, then maybe you could sponsor him. If not, he will have to find a way to immigrate on his own.

 

[Leo2010]

Hi Pokhari, quick question... When you left Canada did they stamp your passport or scan your PR card?

 

[PARAMHAMS03]

May I pose a question for PMM on the same topic? In view of the uncertainty that my son has been facing as narrated in my earlier message about the validity of his PR card and whether he would be allowed to enter Canada when he decides to visit us from U.S., he has taken a decision to surrender his PR status and apply for a visitor visa. The problem is when he approached L.A. consulate and Buffalo consulate they provided him with different approaches to returning the PR. L.A. said that he will have to write to Ottawa and send the papers there to surrender his PR status. Now, would you please enlighten me about the procedure to surrender his PR and apply for visitor visa. Is it possible to do both simultaneously?

 

[PMM]

Hi

May I pose a question for PMM on the same topic? In view of the uncertainty that my son has been facing as narrated in my earlier message about the validity of his PR card and whether he would be allowed to enter Canada when he decides to visit us from U.S., he has taken a decision to surrender his PR status and apply for a visitor visa. The problem is when he approached L.A. consulate and Buffalo consulate they provided him with different approaches to returning the PR. L.A. said that he will have to write to Ottawa and send the papers there to surrender his PR status. Now, would you please enlighten me about the procedure to surrender his PR and apply for visitor visa. Is it possible to do both simultaneously?

He has to voluntarily relinquish his PR status by going to the Canadian consulate in the US and complete From ENF 23 Manual http://www.cic.gc.ca/english/resources/manuals/enf/enf23-eng.pdf

"When a person approaches CIC and requests to relinquish their status, they may be allowed to
complete the IMM 5539B (Declaration: Relinquishment of Permanent Resident Status/Residency
Obligation Met) provided they are truly voluntarily relinquishing their status and fully understand
the consequences. The person can then be treated as a foreign national. A copy of the
IMM 5539B should be sent to the QRC to be stored on microfiche.
Officers should always conduct an interview in person when accepting voluntary relinquishment
of permanent resident status. This procedure is not to be used in lieu of completing a residency
obligation determination for persons who might satisfy the residency obligation in A28 and where
they are only seeking to come to Canada temporarily.
7.11. Recording determination of obligations under A28
At visa offices, all determinations made under A28 are to be recorded in CAIPS. At the POE and
inland CIC offices, all decisions are to be entered in FOSS as “FDE – PR - PERMANENT
RESIDENT DETERMINATION.”

Again a case of staff not knowing the manuals at Visa posts.

 

[PARAMHAMS03]

Thanks again PMM.

 

[PARAMHAMS03]

PMM, one more question to you regarding my son's PR obligation. In view of the fact that he is pursuing his Phd in U.S. and does have the intention of settling down in Canada after his graduation, is there any provision at all for him to be granted extension of his PR status though he has not fulfilled the mandatory period within the five year block and is not likely to be able to fulfil the same. Is there any possibility if he makes an appeal to the immigration minister or someone high in the hierarchy.

I do realise that my question may appear to be naive, but the reasoning is that I would like my son to exhaust all possibilities, real and imaginary before he takes the very painful decision to relinquish his PR status. I am just wondering whether there is any provision for discretion by the minister or somebody high up. After all, the entire family other than my son is very well settled in this beautiful land and my son indeed is quite interested in settling down in Canada where he says he does have lots of opportunities after his Phd.

 

[Leon]

No, there are no special rights for students to keep their PR. If he had humane and compassionate reasons for being gone such as tending to sick parent etc., that might be taken into account but studying outside of Canada is by his own choice.

If he does indeed have great opportunities in Canada after he gets his PhD, it should be easy for him to land a job offer and use that to apply for his immigration again or to get a temporary work permit.

 

[PARAMHAMS03]

Thanks Leon. Yes, that puts things in perspective.