PR Renewal - Time Spent Outside when working for a canadian company

[dpenabill]

Into the Weeds Re Pre-assignment-abroad Circumstances in getting WA4CB Credit for RO:

If you were settled IN Canada before being assigned to work outside Canada, the odds would be good. And the longer and more well-established you were in Canada, the better the odds would be. Indeed, if you were well established in a residence in Canada before being assigned abroad, and there is no doubt the business qualifies as a Canadian business, and a company official confirms the nature of the employment meeting the temporary assignment criteria, that would meet or be close to what I have referenced as an easy to call case, a case in which we could say that being allowed the credit is very likely.

Otherwise it can be tricky.

It can be tricky because there are so many factors which can influence how it goes. Which brings this to a big factor that has nothing to do with whether this employment actually should qualify for the WA4CB credit, but which can have a huge impact on how it goes: the context for the Residency Determination. That is, whether your compliance with the PR RO is being calculated in the context of a Port-of-Entry (PoE) examination, a PR card application, or a PR Travel Document application.

Even though all the facts are precisely the same, the outcome, whether the respective official concludes you meet the RO based on allowing the WA4CB credit, can be different depending on the context in which the Residency Determination (the RO compliance calculation) is done. In particular, assuming precisely the same facts in all these scenarios, there is significant variability in the likely outcome depending on the context for the RO determination:

-- PoE: odds are considerably better the credit is allowed by CBSA officers during a PoE examination, at least to the extent there is no 44(1) Report prepared (or if there is a Report, the possibly that it is set aside, no Removal Order issued by the officer who reviews the Report)​

---- if you have returned to Canada since you passed the threshold for being outside Canada more than 1095 days, you have already experienced such leniency to some extent; obviously, when you next arrive here, there is some risk of being more closely scrutinized about your RO compliance and potentially needing to make the case that you meet the RO based on the WA4CB credit​

-- PR card application, situation 1: if at the time of the PR card application the PR is settled in Canada, and stays IN Canada after applying (except for quite short trips), odds are probably good the credit is allowed as long as a reasonably strong case for the credit is made​

-- PR card application, situation 2: if at the time of the PR card application the PR is only temporarily in Canada and returns to live outside Canada, there is a substantial risk of elevated scrutiny attendant a referral to the Domestic Network, in which case the details will be more closely examined with a higher risk of problems; as long as the supporting documentation reasonably makes a case for the WA4CB credit, the risk of a 44(1) Report at this stage is probably low, BUT there is a significant risk of a lengthy delay and then an in-person pick-up is required​

-- -- in this scenario in which an in-person pickup is required, if the PR is outside Canada and due to the delay in processing the PR card application their PR card has expired, the PR will need to apply for a PR Travel Document . . . in regards to which it warrants noting that even if a new PR card is issued, a PR abroad without a valid PR card will need a PR TD to fly to Canada, which leads to the other, not-so-good odds scenario . . .​

-- PR Travel Document application: A PR outside Canada without a valid PR card is PRESUMED to NOT have PR status; the nature and scope of scrutiny is significantly greater in this context, and a significantly more strict approach is typically applied; while the odds of being allowed the WA4CB credit will depend mostly on the extent to which the facts show the PR meets the criteria, the odds of getting the credit are significantly lower in this decision-making process . . . degree of establishment IN Canada before going abroad to work could be a very big factor​

-- -- as noted above, there is a significant risk that a PR card application decision is delayed such that the PR who continues to live outside Canada will need to apply for a PR TD in order to return to Canada, REGARDLESS of the decision made in regards to the PR card application (unless a new card is issued and mailed, and that is to an address where a trusted family, friend, or associate can collect the PR card and then courier it to the PR abroad)​

​

This is NOT to suggest there is a lot of risk for you that the WA4CB credit will not be allowed. I am NOT evaluating your risks in particular. I cannot forecast the outcome for you.

This is to note that if you were not settled in Canada before getting so "assigned" there is some risk and the extent of that risk is very difficult to predict because there are so many factors which can influence how it goes.

Noting one more example: the nature and scope of inquiry, and skepticism, can be very different if the total number of days actually IN Canada is in the hundreds versus, say, less than fifty, and yeah the latter is likely to make it more difficult.​

I have not come close to wrestling with a lot of details that can have influence. This is not a good venue for engaging in such an assessment of a particular individual's case. You need to rely on using your best personal judgment, and that includes deciding whether to obtain the assistance of a lawyer to help you determine the best way to proceed from here.

Note, too, that there is a significantly different risk for as long as you have a valid PR card, and can return to Canada to stay, compared to continuing to be outside Canada if your PR card expires before a new one is issued, and obviously the risk of a negative outcome is significantly greater in the latter scenario.

​

 

[deehat]

Note: the following observations are NOT intended to evaluate whether YOU will be allowed the working-abroad-for-Canadian-business credit (lets refer to this as the WA4CB credit). There are some situations in which it is more or less obvious that the odds are very good, or not at all good, and it is an easy call one way or the other.

Otherwise, and this is rather common, and appears to apply in your situation, I cannot opine what decision IRCC or CBSA will make. I can say and do say with emphasis that any opinions expressed in a forum like this, as to what IRCC or CBSA will decide, should NOT be relied on.

My observations are intended to illuminate what we know about relevant factors that can influence IRCC and CBSA decision-making. For someone in your situation this is to help YOU make decisions about how to best proceed based on YOUR own best judgment, including whether or not to obtain the assistance of a reputable, competent Canadian immigration lawyer to help you decide how to proceed, and in particular whether to rely on being allowed the WA4CB credit toward meeting the Residency Obligation.

@canuck78's question about how long you worked for the Canadian business IN Canada before being sent/transferred/assigned outside Canada is indeed one of the more pertinent questions referencing circumstances/factors that can indeed have a big influence in how it goes.

This is especially relevant in assessing whether the PR was in fact employed in a position in Canada and then temporarily assigned to work outside Canada or, for one example, was employed to work at a position outside Canada, that is, employment akin to a local hire (as in, were you hired by the business to do the work outside Canada, which would not qualify, or hired for a job in Canada but then assigned to work outside Canada).

How this factor influences the overall determination as to whether the PR gets the working-abroad-for-Canadian-business credit can be complicated and very difficult to forecast if there is any cause to question it. This is where a range of evidentiary factors have influence. Did I mention that qualifying for this credit can be quite tricky? (Yes, I did, with emphasis.)

Some (just some) relevant factors (assuming there is no reason to doubt the business itself meets all the criteria to qualify as a Canadian business for this specific purpose) include:

-- was the PR clearly settled IN Canada BEFORE being assigned to work outside Canada​

-- was the PR clearly established as an employee of the Canadian business BEFORE being assigned to work outside Canada​

-- was this employment arranged to support a claim for the WA4CB credit in order to allow the PR to meet the RO (note, if the business itself is determined to be for such a purpose that conclusively precludes credit; but even if that exception to what qualifies as a Canadian business does not apply, the more it appears this employment might be about allowing the PR to live outside Canada the more it can have a negative influence in the decision-making)​

-- a wide range of factors involving the nature of the employment itself, including but not limited to whether the employment relationship is such that the PR will continue in it upon the PR's return to Canada, among other factors such as those related to whether the PR is employed full time by the Canadian business​

As you note, in at least one case (and sure, perhaps in more) the fact the PR did not first work IN Canada did NOT definitively preclude getting the WA4CB credit. But BEWARE it is nonetheless still a factor and it can be a key factor (and in more than a few other cases has been) tending to push the needle in the direction of not allowing the WA4CB credit.

While again I cannot forecast how this will go for you, assuming there is no reason to at all doubt that the business itself qualifies, this may be the key factor for you in determining whether you are, in effect, a local hire (hired by the business for the position outside Canada) or hired to work for a position IN Canada but temporarily assigned to work in the position outside Canada. If the former, no WA4CB credit; if the latter, credit likely allowed.



This suggests you have a strong case documenting your work outside Canada is pursuant to a temporary ("temporary" is the more applicable term, not "temporal") assignment likely meeting the WA4CB criteria.

But that does NOT preclude IRCC or CBSA scrutiny of the underlying facts and circumstances. If you were well-settled IN Canada before being assigned to work outside Canada, what you describe would likely make this an easy to call case, one that those of us in the forum could credibly say is very likely to qualify for the WA4CB credit.

I cannot say, because I do not know, to what extent IRCC, or potentially CBSA in the Port-of-Entry (PoE) when you are arriving here, might approach your case more skeptically if in contrast you were not actually settled IN Canada before getting assigned to the position outside Canada. Note that there are what appear to be, what may be seen to be, some incongruities in the underlying details (this is not the place to get into those weeds and the facts are what they are: these are things that will not determine if you are allowed WA4CB credit, but they could trigger questions elevating how strict the scrutiny is).

I can say the odds are probably quite good there will not be a problem at the PoE, at least not a serious problem, when you next arrive here. But again there is some risk otherwise. It warrants noting that the risks involved can vary depending on many factors, including factors that do not directly involve WA4CB credit criteria. Can make a big difference, for example, in whether Residency Obligation credit is being assessed attendant a PoE examination, or a PR card application, or an application for a PR Travel Document.

I will address the latter in another post. To illustrate how even non-relevant factors can nonetheless influence how things go. Did I mention that getting this credit can be tricky. Yeah, I have, a lot, with emphasis.

Thank you @dpenabill for your comments. All your concerns are noted. As I previously mentioned, I am consulting with an immigration lawyer prior to submitting my PR renewal application. I will update as things progress. Thanks again.

 

[varma116]

@deehat, any updates on your pr renewal card?