Residency Obligation (RO) requirement clarification

[ad2310]

Hi,

I'd like to get your opinion on a RO requirement in regards to working outside Canada.

Per PR renewal guide, it states the following:
"Situation 2. Employment outside Canada
You may count each day you were employed outside Canada if your employment meets the following requirements:
• you are an employee of, or under contract to, a Canadian business or the public service of Canada or of a province or territory and
• as a term of your employment or contract, you are assigned on a full-time basis to:
o a position outside Canada
o an affiliated enterprise outside Canada or
o a client of the Canadian business or the public service outside Canada; and
• you will continue working for the employer in Canada after the assignment."

The issue is the last condition (working after the assignment). In my case I've met all the conditions except this one as the Canadian affiliate has closed in a year and I quit with them.

So to further check, I've looked into the Act and Regulations which states the following in this regard:

ACT:
28 (2) (a) (iii) "outside Canada employed on a full-time basis by a Canadian business or in the federal public administration or the public service of a province"

and the Reg further clarifies the the meaning of a "Canadian business" but nothing regarding the employment after the assignment. To me, it seems that the Act and Reg should take precedence as the application guide simply relies on those two pieces of law. But where did CIC take this last requirement and place it in its application guide?

I'd like to get your opinion on this as I am basically stuck here. Do you think I am safe to apply under the circumstances? Without meeting the requirement of being employed back in Canada after the assignment abroad?

Thanks a lot!

 

[scylla]

Are you saying that the company no longer has any operations in Canada?

How did you end up outside of Canada? Were you first hired by the Canadian arm of the company and then after a few months / years assigned to the role outside of Canada?

 

[ad2310]

The Canadian company existed before and still exist up to this day. What I mean by "closed" is that its affiliate, let's just call it "Subsidiary" closed. I believe it will qualify as "affiliate" is the head office owned it 100%.


I wasn't hired by the head office initially. I was specifically contracted as an independent contractor by the head office to set up this Subsidiary and establish the operations in the foreign country, this was for 3 months. Once the Subsidiary was formally set up, I became its employee of Subsidiary for another 10 months. My wages were received via the Subsidiary (as I was its employee in that country and taxed paid in that country as well). But then the head office decided to stop the operations (it had around 7-30 employees at different times), so I was basically left without a job.

Hope this will clarify...

 

[scylla]

The Canadian company existed before and still exist up to this day. What I mean by "closed" is that its affiliate, let's just call it "Subsidiary" closed. I believe it will qualify as "affiliate" is the head office owned it 100%.


I wasn't hired by the head office initially. I was specifically contracted as an independent contractor by the head office to set up this Subsidiary and establish the operations in the foreign country, this was for 3 months. Once the Subsidiary was formally set up, I became its employee of Subsidiary for another 10 months. My wages were received via the Subsidiary (as I was its employee in that country and taxed paid in that country as well). But then the head office decided to stop the operations (it had around 7-30 employees at different times), so I was basically left without a job.

Hope this will clarify...

If you were hired to the foreign role directly - then you most likely have a problem on your hands. Based on how we've seen CIC apply this rule, they expect you to first be hired for a role within Canada and then later transferred to a temporary role outside of Canada (which is why they have the clause that states that you must have plans to return to your original role in Canada - the foreign assignment is temporary only). Based on what we've seen here, if you are hired to the foreign role directly, CIC will not count your time outside of Canada towards RO.

 

[ad2310]

Thanks, Scylla, for your quick response. I do have a follow-up question. It appears to me that the Act is fairly clear and that as long as you are under contract with a Canadian business outside Canada, the requirement should be met. To me, it is at least misleading as the requirements are extended in the application guide and as CIC would take the extended requirement position (as you suggested). Assuming I am rejected, would I get a chance to appeal? And what is the estimated timeline with appeal?
I am thinking not to apply at all and only do so after 2-year physical presence is met. If my understanding is correct, 5-year period is count from the application date even if I've become a PR over 5 years again, am I correct?

Best,
AD

 

[scylla]

Yes - the five years is counted from the application date.

And yes - I understand what the Act says - what I've explained is how we've seen CIC interpret the rule time and time again in practice. What you've quoted in your original post is not the full extent of the requirements / information available - there's more on the CIC web site somewhere. It would be good to find that information so that you understand how you will be assessed.

Yes - you can certainly appeal. Appeals tend to take time (I would count on a year or more) - and it's typically recommended that you remain in Canada for the duration of the appeal if you want a strong chance of succeeding.

 

[scylla]

OK - found some of it. It's here and also quoted below: http://www.cic.gc.ca/english/information/applications/guides/5529ETOC.asp

OPTION 2. Employment outside Canada

You may count each day you were employed outside Canada if your employment meets the following requirements:

you are an employee of, or under contract to, a Canadian business or the public service of Canada or of a province or territory and
as a term of your employment or contract, you are assigned on a full-time basis to:
a position outside Canada
an affiliated enterprise outside Canada or
a client of the Canadian business or the public service outside Canada

For this application, a Canadian business is defined as:

a corporation that is incorporated under the laws of Canada or of a province and that has an ongoing operation in Canada
an enterprise that has:
an ongoing operation in Canada
is capable of generating revenue
is carried out in anticipation of profit
in which a majority of voting or ownership interests is held by Canadian citizens, permanent residents, or Canadian businesses as defined above or
an organization or enterprise created by the laws of Canada or a province

Supporting documents:

You must provide a letter signed by an official of the business stating:

the position and title of the signing official
the nature of the business and how it fits the description of a Canadian business (see definition above)
details of your assignment or contract outside Canada such as duration of the assignment; confirmation that you are a full-time employee of the “Canadian business” working abroad on a full-time basis as a term of your employment, or that you are on contract working on a full-time basis abroad as a term of your contract; and a description or copy of the position profile regarding the assignment or contract abroad
confirmation that the business was not created primarily for the purpose of allowing you to satisfy your residency obligation

You may also include:

articles of incorporation and business licences
partnership agreements or corporate annual reports
corporate Canadian Income Tax Notices of Assessment or financial statements
copies of the Employee Assignment Agreement or Contract
copies of any agreements between the Canadian business and the business or client outside Canada concerning your assignment to that client or business
Pay Statements
Canadian Income Tax Notice of Assessment
T4 slips
Any other evidence that you want to have considered

 

[ad2310]

Thanks, Scylla.