PR Retention while working on rotation

Reda wrote: I am a PR under the Skilled Worker Scheme. Landing done on 9th of April 2012. PR Card expires 12 Jun 2017. Was transferred to work in the UK shortly after my landing. Hardly spent a week inside Canada since then. June 1st , 2014: Transferred to Canada - same company - Canadian Contract based in Calgary but working in Africa on a 5 / 3 schedule out of Canada. 5 /3 schedule <=> 62.5% (5 /8) time outside Canada / 37.5% (3/8) time inside Canada ( excluding holidays abroad) 12 Jun 2012 --> 01 Jun 2014 = 719 days ( lost) 01 Jun 2014 --> 12 Jun 2017 = 1107 days ( remaining on my PR ) 719 + 1107 = 1826 days = 5 years Between 12 Jun 2012 and 12 Jun 2017, I will have spent 37.5% x 1107 = 415 days of physical presence inside Canada. 415 < 730: hence won't be able to retain my PR status if we stick to the CIC Residency Requirements. Question: Can the days spent outside Canada for this Canadian Company count as residency days towards retaining my PR?

Primary resource for understanding the PR residency obligation, and what constitutes credit for presence in Canada while abroad, including in particular while employed abroad, is Appendix A: Residency Obligation in the guide for applying to replace or renew a PR card.



Calculation basics
First, a picayune but illustrative point: for purposes of the PR residency obligation, there are specifically 1825 days in the five years that count. On the calendar one would count at least 1826, perhaps 1827, depending on whether one or two leap years fall within the applicable five year span. February 29 does not count as a day present or a day absent. It simply does not count, as if it never existed.

One day one way or the other will not, ordinarily, make a difference. So this is a picayune point in terms of actually calculating compliance with the PR residency obligation.

But this illustrates an important point: there are particular rules governing how CIC and CBSA assess compliance with the residency obligation. This looms larger in the context of what constitutes a qualified "Canadian business" for purposes of being given credit for time abroad employed by a Canadian employer: there are specified requirements beyond merely being a business formed in Canada.

Another important factor to keep in mind, is that the PR residency obligation is in no way dependent on the validity dates of the PR card. In particular, the expiration date on your PR card is not relevant.

There are many ways to state the essence of the PR residency obligation, but it really comes down to this: to remain in compliance, a PR must not be absent from Canada for more than 1095 days within the previous five years, not counting an absence prior to the date of landing.

Thus, for example, if your employment abroad does not qualify for the exception, for the option pursuant to which there is credit for time abroad while employed full time abroad by a qualified Canadian employer, and you have physically been present in Canada a total of 30 days, you would be in breach of the PR residency obligation and subject to the loss of PR status as of May 11, 2015 (on this date, of the 1126 days since you landed, April 9, 2012, having been present 30, absent 1096, you would be in breach of the PR residency obligation). The CIC site describes the same thing in a different way, stating that the total number of days present since landing plus the number of days left to the fifth year anniversary, again of landing, need to add up to 730 in order to be in compliance with the PR residency obligation. As of the date that is your fifth year anniversary of landing (April 9, 2017), and from that date going forward, compliance with the PR residency obligation is calculated based on looking backwards, over the immediately preceding five years, during which you must have been "present" for at least 730 of those 1825 days (no February 29 counted, either way).

PR card dates, whether date of issuance, or date of expiration, do not matter, do not figure into the PR residency obligation calculation. A PR can be in breach of the PR residency obligation even if the PR card is almost brand new, very recently issued, and still "valid" for several more years. What matters is whether or not the applicant has been absent for more than 1095 in the immediately preceding five years (not counting days prior to landing), as of any given day.      



Credit for time abroad employed by a Canadian business
Foremose, again, see Appendix A: Residency Obligation, in the guide for applying for a new PR card.

Option 2 regards counting days employed outside Canada if your employment and your employer meet the specficied requirements.

This can be read quite broadly. There are, in contrast, some IAD and Federal Court decisions which suggest CIC may apply the exception more severely than might be indicated to the ordinary person.

At the least, anticipate that what is specified in the Appendix may, probably will be, strictly applied. In this regard, that the employer is a "Canadian" business in general terms or as may be defined for other purposes, is not sufficient. See the particular criteria listed in the Appendix to the Guide, both as to the nature of the position employed in, and what qualifies as a "Canadian business." Note, in the cases, "full time" position does not mean a "permanent" position, and indeed there have been some cases in which a permanent position abroad has been deemed to not qualify (I confess, I do not quite understand the reasoning or the distinction, I am just familiar with a couple instances in which it has been applied in justifying an adjudication that PR status was lost -- I suspect other factors, perhaps credibility concerns, were at play, but in addition to not quite grasping how the distinction was applied, or why, it has been awhile since I read those cases).

Also be aware that accounts offered by others, based on past experience, are probably not a good indicator. This appears to be one of the areas in which the trend is toward a significantly more strict approach than was the practice in previous years.

This is mostly something you need to consider carefully, and decide for yourself, using your best judgment and best understanding of the requirements. Or consult with a reputable lawyer not consultant.


Possible red flag:
I know nothing about who your employer is or what the particulars are relative to the terms of employment. And this is neither a proper forum for going into such details, nor am I at all in any way qualified to assess your personal situation and offer individual advice regarding how the rules apply to your particular situation. But, depending on other circumstances, how soon after landing you were "transferred" abroad naturally invites a question about whether it was actually a transfer abroad or whether you were hired to work abroad. Does it make a difference? The CIC web site refers to "assigned" abroad; in particular, the option provides credit for a PR who is an employee of a Canadian business and is "assigned" to a position outside Canada. My best guess is that other circumstances can have significant influence in the approach CIC takes in such cases, ranging from the nature of the Canadian business (and the extent to which it is grounded in Canada, with an ongoing operation in Canada) to the particulars in how and when you became an employee of this business.

Thus, that is, your particular situation may range from virtually no concerns in this regard to reason-to-be-concerned, depending on the particular facts regarding your employer, your relationship with the employer, and the employment itself. Again, this is largely something you need to assess for yourself, or in consultation with a proper legal professional (a lawyer), and keeping in mind it appears that CIC has grown more suspicious, and for some PRS has elevated the level of scrutiny, in the last few years.

Reda, it is unlikely that under the new law you would be able to even apply for citizenship before 2021 if you take this assignment, so I would recommend discussing a job with more than 50% physical presence in Canada with your employer.

dpenabill wrote: I do not know what full time means precisely. Forty hours a week surely is full time. Ten hours a week almost as surely is not full time. Working on a commission contract probably is not full time, but probably does not constitute being an "employee" either. (While I work exclusively for a single corporation, for example, I am an independent contractor and as such I am not an "employee" of that corporation -- I am, in many respects, employed by that corporation, but an not an employee.) There tends to be a great deal of variability these days in employment arrangements, including many which do not constitute a formal employer-employee relationship.

Warning: please write concisely and stay to the point. A 13-paragraph answer to a short question, more than half of which is off-topic, may be considered an attempt to flood the forum.

Reda wrote: One thing I forgot to mention: would it make any difference if my wife (PR ) is living in Canada with my kids who were born in this country ?

To a significant extent, I think the import of this factor is covered in my previous response under the heading "Some additional observations about compliance with PR residency obligation"

In particular: if your life is largely centralized in Canada, and you travel outside Canada only for a rotational work schedule, with frequent and regular returns to Canada (consistent with living with your family in Canada except for the demands of a job), that is a major plus in an assessment of your compliance with the PR residency obligation.

That is, of course it makes a difference in terms of what are equitable factors.

Caution: Presence/residence of family in Canada, even with young children, will not overcome a breach of the PR residency obligation, and in particular it has been deemed a minimal H&C factor. The obvious argument (which is expressed in numerous IAD decisions) is that the extent of time actually already spent outside Canada evidences not allowing you to live in Canada would impose minimal hardship to your family or to you, since that is what you have been doing, while in contrast if the relationship is genuine you can be sponsored for PR if and when you are actually intended to live in Canada.

Again, there are a lot It-Depends factors, too many to attempt to enumerate them let alone offer a descriptive explanation for even a select few.

Clarification: in my previous post I perhaps mangled the full-time/part-time issue. Main point I was trying to illuminate is that working-on-a-rotation is not likely to be a main factor in assessing whether you are employed on a full-time basis.

Another aspect of the discussion, about work abroad that qualifies for credit as time resident in Canada, warranting some clarification, is the reference to a "contract." What I was attempting to illuminate in this regard is that one of the key factors, to qualify for the credit while working abroad, is that the relationship should be essentially an employer-employee relationship and other types of contract may not qualify. That is, the "contract" referred to in the guide and other CIC sources should be, on its face and in its essence, an employment-contract. This is important because as I reference there are many variations in relationships between those paying for services and those providing services, many of which will of course be based on contract but which may be interpreted by CIC to be outside the scope of credit for time working outside Canada.

The example I offered was the kind of contract an independent contractor might have, as this is perhaps one of the more common contracts to work which, however, would not qualify for the credit. In particular, it is likely that an independent contractor would be denied credit for time abroad working attendant such a contract. This is, of course, yet another one of those It-Depends areas, the actual outcome depending on an overall assessment of whether the particular work, assignment, and relationship with employer meets CIC's interpretations of what qualifies for the credit.     

I should emphasize that I have not made an effort to analyze your particular situation. I am not qualified to offer personal advice about specific cases, the general principles are (as I emphasize) subject to extensive It-Depends caveats, and in many respects there can be extensive variability in how CIC or CBSA approach particular individuals in particular cases. There can be significant variability in what inferences CIC or CBSA make regarding this or that circumstance.

Overall: If your life is centralized in Canada and you go abroad almost exclusively to work as an employee of a bona fide Canadian company, you are probably OK, good to go. A rotational schedule works in your favour, not against it.

In particular, but for the timing of your employment and deployment abroad, if the employer is a bona fide Canadian employer, it appears there should be little concern about getting credit for time working abroad. Even if the timing of your employment and deployment abroad carries an undercurrent issue (relative to being "assigned" abroad), it appears most of the other factors (family and personal life centralized in Canada, all or nearly all time-off spent in Canada) weigh well in your favour and, so long as the employer is a bona fide Canadian employer, what you reveal seems to be enough to indicate you should OK.

But again, this is not a forum suitable for assessing individual cases. The particular facts of your specific case matter.

As I had indicated in an earlier post, you can probably obtain an opinion from a qualified lawyer for a somewhat modest fee (300 to 500 Canadian).

Only you can decide how uncertain you are, whether you need more assurances, and whether you can afford to pay a lawyer for an opinion.

You can call CIC and ask but since there are so many variables I doubt the response will be reliable or even that meaningful.