PRTD - accompanying a Canadian citizen

[mystia]

Hi all, I became a PR in Canada in August 2010, but in September 2014 I moved with my boyfriend (Canadian citizen) to Europe, as he obtained a good job offer. We had been living together for 2 years already in Canada. In Nov 2014 we married in the US and continued our life in Europe. I have been back to Canada only once in 2015.

Recently, he obtained a new job offer back in Canada, so we are in the process of moving. I also have a job offer in Canada already. I applied for a PRTD under the section "accompanying a Canadian citizen", and according to the application I have 2202 days total towards my RO. I have spoken to a lawyer in the meantime and I was told to prepare to go through sponsorship again for a new PR.

What is your experience, has anyone been in a similar situation, and did you obtain your PRTD or not? Thank you for any shared experiences!

 

[Bs65]

Married in the US so do you have a US passport ?

 

[mystia]

No, I don't, my husband also has US citizenship, I have a multiple entry visa.

 

[dpenabill]

I have 2202 days total towards my RO.

"I have 2202 days total towards my RO."

This is NOT possible.

At the most (counting two leap years in the relevant five) the maximum possible credit toward the Residency Obligation is 1827 days. Five years. 365 days a year. Plus, at the most, two more days counting February 29 in 2016 and 2020.

I address this separately, upfront, because it is such a blatant, obvious error, it suggests the likelihood you made others and were, perhaps, not following the instructions. Which it makes it very difficult to sort out why the lawyer says you should prepare to be sponsored for PR anew.

The question is whether the lawyer's advice was:

-- be prepared, JUST in CASE, or​

-- be prepared because the PR TD will likely be denied, and if this is what the lawyer thinks, was this based on​

-- -- an opinion that you will NOT get credit toward the RO for time together with spouse (no "accompanying" citizen spouse credit), or​

-- -- an opinion there are other reasons why your PR TD will likely be denied​

I HESITATE to second guess lawyers. I assume you shared more details with the lawyer than you have here. I am NOT an expert. I am NOT qualified to offer personal advice. I cannot entirely know what the lawyer's advice is based on. And in this scenario, in particular, it is NOT all that clear that what the lawyer is actually saying.

Nonetheless, if the lawyer said, in effect, the PR TD will be denied and you have NO plausible case for succeeding on appeal, so plan to proceed with a new PR application based on spousal sponsorship, that is something I would second guess.

Foremost, wait for a response to the PR TD. If granted, which seems quite possible (depending on the nature and scope of errors you made in the application), you are good to return to Canada with NO status problems.

BUT EVEN IF the PR TD application is denied, it would still make sense to APPEAL this. Time to do so is limited. But if you appeal, as long as you can travel to the U.S., and then travel to the U.S./Canadian border by land, you will be allowed to enter Canada. As long as the appeal is pending you are still a Canadian PR. So it will be legal to live and work in Canada just like any other Canadian.

Best to make such a trip TOGETHER. To approach and cross the border together.

The appeal will give you time to re-establish your life in Canada, to find a good lawyer to help make the case in the appeal, and in particular to make the case that you were in fact accompanying (as this term is defined for purposes of applying the credit toward RO, which can mean more than just being together, which can depend on WHO was accompanying WHOM) your Canadian citizen spouse, OR IN THE ALTERNATIVE, make the case that you should be ALLOWED to keep your PR status on H&C grounds, which warrants a separate discussion but could, for example, be partly based on a reasonable belief you were entitled to the accompanying-a-citizen-spouse credit.

Then you will still have the sponsorship PR application as a back-up plan in case the appeal is denied.


More regarding the accompanying-a-citizen-spouse credit and a potential WHO was accompanying WHOM issue:

Hi all, I became a PR in Canada in August 2010, but in September 2014 I moved with my boyfriend (Canadian citizen) to Europe, as he obtained a good job offer. We had been living together for 2 years already in Canada. In Nov 2014 we married in the US and continued our life in Europe. I have been back to Canada only once in 2015.

Recently, he obtained a new job offer back in Canada, so we are in the process of moving. I also have a job offer in Canada already. I applied for a PRTD under the section "accompanying a Canadian citizen", and according to the application I have 2202 days total towards my RO. I have spoken to a lawyer in the meantime and I was told to prepare to go through sponsorship again for a new PR.

What is your experience, has anyone been in a similar situation, and did you obtain your PRTD or not? Thank you for any shared experiences!

It appears that the WHO-accompanied-WHOM question might be a problem with your PR TD application. Assuming a qualified lawyer with real experience in Canadian PR obligation issues reviewed your actual PR TD application and the details of your situation, and concluded that your PR TD will likely be denied because the accompanying-a-citizen-spouse credit will be rejected.

This is an issue discussed at length in other topics.

For example, see topic titled: "Who-accompanied-whom can matter for PRs living with citizen spouse abroad: UPDATE"
https://www.canadavisa.com/canada-immigration-discussion-board/threads/who-accompanied-whom-can-matter-for-prs-living-with-citizen-spouse-abroad-update.579860/

MY GUESS (I can only guess) would have been otherwise. My guess would have been it is unlikely there will be problem getting the accompanying-a-citizen-spouse credit in the situation you described; possible but not likely.

My further guess is there is a good chance of succeeding in an appeal even if the visa office denies the PR TD on this basis. Whether that is based on getting the credit or based on H&C reasons (assuming you have come to Canada and have stayed pending the appeal).

For now, what makes sense is waiting to see what the PR TD decision is . . . and plan to travel to Canada via the U.S. as a back-up plan.

 

[vensak]

Given the little info there.
What is unclear is what was her status as of September 2014 (before she married her husband). If she was not in common law already, then that is the problem there. I guess important here might be tax declarations for those years they were supposed to live together (weather they did declare each other as common law or not).

Another issue is how were they living together in Europe (same address or different addresses) and if there were especially longer gaps they were apart.

Maybe one other issue can be her current citizenship (especially if she has the citizenship of country in Europe where her husband was working).

 

[mashulia_26]

Hi all, I became a PR in Canada in August 2010, but in September 2014 I moved with my boyfriend (Canadian citizen) to Europe, as he obtained a good job offer. We had been living together for 2 years already in Canada. In Nov 2014 we married in the US and continued our life in Europe. I have been back to Canada only once in 2015.

Recently, he obtained a new job offer back in Canada, so we are in the process of moving. I also have a job offer in Canada already. I applied for a PRTD under the section "accompanying a Canadian citizen", and according to the application I have 2202 days total towards my RO. I have spoken to a lawyer in the meantime and I was told to prepare to go through sponsorship again for a new PR.

What is your experience, has anyone been in a similar situation, and did you obtain your PRTD or not? Thank you for any shared experiences!

How did you get your PR? Did he sponsor you?

 

[mystia]

dpenabill, Thank you very much for you extensive reply and wealth of information provided. I am clarifying further some details of my situation below, in the hope that this will help someone else who will be in a similar situation to mine.

"I have 2202 days total towards my RO."

This is NOT possible.

At the most (counting two leap years in the relevant five) the maximum possible credit toward the Residency Obligation is 1827 days. Five years. 365 days a year. Plus, at the most, two more days counting February 29 in 2016 and 2020.

Yep, you are right. This is because in the count I started in Sept 2014 (when we left Canada), as the rental contract in Europe started then and I was advised by the Embassy where I sent my application to put it like this if I intend to submit the rental contract with our names on it, which has that starting date.

The question is whether the lawyer's advice was:

-- be prepared, JUST in CASE, or​

-- be prepared because the PR TD will likely be denied, and if this is what the lawyer thinks, was this based on​

-- -- an opinion that you will NOT get credit toward the RO for time together with spouse (no "accompanying" citizen spouse credit), or​

-- -- an opinion there are other reasons why your PR TD will likely be denied​

The lawyer I think was leaning towards "be prepared", I didn't really ask her directly. I may have been unclear in my initial message in my desire to keep my original post short and readable. The lawyer advised to go ahead with PRTD first and based on the results of that we would see if we should apply for sponsorship, and that she will assist in entering Canada and declaring dual-purpose (i.e. enter on visitor visa with intention to apply for sponsorship). The lawyer discussed briefly about the PRTD as a first step and then provided much more information about sponsorship, which is what concerned me. She advised that for PRTD I can put together the application myself, but for sponsorship she can (and probably should) assist. She also advised us to file any missing tax years, if they are unfiled.

It appears that the WHO-accompanied-WHOM question might be a problem with your PR TD application. Assuming a qualified lawyer with real experience in Canadian PR obligation issues reviewed your actual PR TD application and the details of your situation, and concluded that your PR TD will likely be denied because the accompanying-a-citizen-spouse credit will be rejected.

I am not sure this would be a problem, I was established in Canada since 2007, as I studied there, and I lived there until Aug 2014, with 2 brief 1-month visits to my home country in that time. I also worked there, rented, had a bank account, a company. My husband's work contract in Europe also started before mine, and his work contract in Canada starts before mine as well.

 

[mystia]

Given the little info there.
What is unclear is what was her status as of September 2014 (before she married her husband). If she was not in common law already, then that is the problem there. I guess important here might be tax declarations for those years they were supposed to live together (weather they did declare each other as common law or not).

Another issue is how were they living together in Europe (same address or different addresses) and if there were especially longer gaps they were apart.

Maybe one other issue can be her current citizenship (especially if she has the citizenship of country in Europe where her husband was working).

Vensak, thank you for the reply, and please find below my clarifications.

Our status before Sept 2014 was common-law I believe, as we lived together for 2 years (we have rental contracts to prove it, however our tax returns have been lost in the multiple moves across Europe, and I can't remember if we filed together or not). We did not declare ourselves officially as common law in Canada.

We were living together in Europe at all times, with no gaps except for work travel (2-3 days).

My current citizenship is not in any of the countries where we lived in Europe.

 

[mystia]

How did you get your PR? Did he sponsor you?

Nope, he did not, I was sponsored previously by someone else. We were not together at the time.

 

[dpenabill]

Re any potential who-accompanied-whom issue:

I am not sure this would be a problem, I was established in Canada since 2007, as I studied there, and I lived there until Aug 2014, with 2 brief 1-month visits to my home country in that time. I also worked there, rented, had a bank account, a company. My husband's work contract in Europe also started before mine, and his work contract in Canada starts before mine as well.

And as I noted, that is consistent with what I would have guessed. That your situation is not one which would trigger a who-accompanied-whom concern.

But that was the only issue (other than making errors) which at all seemed a likely candidate for a lawyer's concern about getting a PR TD.

And in particular, other than the prospect of making errors in the PR TD application, there should be little or no reason to apprehend the PR TD application will be denied. (I do not understand your explanation about calculating the number of days credit you have . . . but what matters is the information you entered in the PR TD application and whether it shows you were abroad accompanying a Canadian citizen spouse for at least 730 days during the five years immediately preceding the date you signed the PR TD application.)

Which, it warrants some emphasis, makes it all the more likely that the first back-up plan, the prepared-just-in-case plan, just in case for some reason the PR TD application is denied, would be to APPEAL and then travel to Canada via the U.S. (assuming this is available, complicated a little by covid-19 but nonetheless it should be manageable).

I get the impression that the lawyer's advice was obtained via telephone, not based on actually reviewing a copy of the PR TD application and accompanying documents, and perhaps even a free consultation. I tend to be among a minority here who strenuously encourage obtaining the services of competent professionals, and especially so if there is any doubt, significant concern, or difficult issue. And as I previously observed, I am hesitant to second-guess any lawyer's advice.

That said, advice tends to be worth little or no more than what is paid for it. (And yeah, that applies here, to me, to anyone posting here.)

Applications for a PR TD can be denied for a technicality. Should not happen, but it can. An appeal is the remedy. For a PR who has been abroad for more than a year since last time in Canada, it can be difficult to get a special PR TD allowing the PR to fly to Canada pending the appeal. But as long as you have the option of traveling to the U.S., the best option is to file the appeal and come to Canada via the U.S. This is by far a lot, lot better than going the route of a sponsored spouse PR application. Nowhere near a close call.

[the lawyer] also advised us to file any missing tax years, if they are unfiled.

There should be no need to file Canadian tax returns for any years you were not living in Canada as long as you did not have Canadian source income.

There is no need to file joint returns so far as I know. I am no tax expert, far far from it, but as far as I know filing jointly is more for the individual's convenience and has little if any impact other than the convenience of doing it together. (If anyone knows of some specific advantage to filing jointly, please let me know . . . my spouse and I have always filed separate returns, as mine is far more complicated and I typically need the latter deadline for small business filers.)

 

[mystia]

Once again @dpenabill, thank you for the detailed response. I also spent some time yesterday reading through your thread about the "who-accompanied-whom" debate, and some of the appeal precedents.

I get the impression that the lawyer's advice was obtained via telephone, not based on actually reviewing a copy of the PR TD application and accompanying documents, and perhaps even a free consultation. I tend to be among a minority here who strenuously encourage obtaining the services of competent professionals, and especially so if there is any doubt, significant concern, or difficult issue. And as I previously observed, I am hesitant to second-guess any lawyer's advice.

The advice was obtained through a teleconference, because the lawyer is in Canada. This was a free consultation, because we were referred through a friend, and lasted about 75 minutes. I have to admit that I was not worried about the PRTD before meeting the lawyer, and my concerns started once she told us that: 1. we have to discuss about sponsorship and 2. we are in breach of our obligations to the CRA by not filing taxing for the years we have been away (even though we have no income from Canada, salary, rental or otherwise).

There should be no need to file Canadian tax returns for any years you were not living in Canada as long as you did not have Canadian source income.

This has proven to be true, as we followed up with a Canadian accountant, who confirmed that there is no need to file, unless we would like the Canadian government to be aware of our earnings in another country. He mentioned that in some circumstances, when there is a huge income in another country, it is worth to file, especially if you are further applying for some type of sponsorship or visa. But in our case, he advised it would ultimately be a waste of money.

 

[mystia]

Update for anyone in the same situation:
I was granted a multiple entry R1 visa for one year. The visa was processed very fast (3 days) at the Canadian Embassy in Vienna.

 

[dpenabill]

Update for anyone in the same situation:
I was granted a multiple entry R1 visa for one year. The visa was processed very fast (3 days) at the Canadian Embassy in Vienna.

Good news and thank you for the update.

Follow-up reports like this are a big help for those of us who follow anecdotal reporting and take it into consideration (along with authoritative and official sources) when we offer information and observations to others. Appreciate it.

 

[mpsqra]

Hi all, I became a PR in Canada in August 2010, but in September 2014 I moved with my boyfriend (Canadian citizen) to Europe, as he obtained a good job offer. We had been living together for 2 years already in Canada. In Nov 2014 we married in the US and continued our life in Europe. I have been back to Canada only once in 2015.

Recently, he obtained a new job offer back in Canada, so we are in the process of moving. I also have a job offer in Canada already. I applied for a PRTD under the section "accompanying a Canadian citizen", and according to the application I have 2202 days total towards my RO. I have spoken to a lawyer in the meantime and I was told to prepare to go through sponsorship again for a new PR.

What is your experience, has anyone been in a similar situation, and did you obtain your PRTD or not? Thank you for any shared experiences!

did you get your PRTD?
if yes,,, go ahead,,,
if not,,, go through sponsorship again for a new PR.