Another Preserving Residency Question |
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vlad1434
New Member Joined: 21 Apr 2010 Status: Offline Points: 7 |
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Posted: 22 Apr 2010 at 11:58pm |
Beaver, dpenabill, scylla, pmm. Thank you very much for taking the time to explain these things to me. I appreciate it a lot. These were very helpful and guiding information indeed.
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Beaver
Senior Member Joined: 05 Feb 2010 Status: Offline Points: 406 |
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You are right, dpenabill - we can't tempt fate if we push these things to the limit. Thank you for the warning. It's not really a simple thing to just get in and out as we please...
My suggestions about leaving and returning after spending 2 years here and 3 year out would technically work - "technically" - albeit on paper and in a perfect world. Of course, there's absolutely the Immigration officer factor to consider, and the danger of being further scrutinized. That really didn't occur to me until you pointed that out.
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dpenabill
Top Member Joined: 29 Nov 2009 Status: Offline Points: 6407 |
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Clarification: I believe that February 29 (in a leap year) does not count, either way. Does not count as a day in Canada. Does not count in calculating days absent. I am sure it does not count in the calculation for citizenship purposes, so I expect the same analysis applies to the residency obligation. However, it may not loom as importantly given the H & C discretion applicable to a PR residency obligation decision, in which one significant factor is the number of days by which the PR fails to meet the obligation . . . but see cautions about cutting it close in general. In contrast, for citizenship, the residency calculation is a fixed, qualifying criteria, no discretion (other than the discretion inherent in the fact-finding aspect); an applicant with less than 1095 days is, simply, not eligible.
As for returning within a day or few days of a date necessary to meet the residency obligation -- Anyone who was in Europe ten days ago and had less than ten days to return to meet their obligation blew it (the volcano in Iceland blew it for them, shutting down air travel for over a week). Stuff happens. Airlines do not always fly. Stuff can happen to an individual as well, a minor accident on the way to the airport, missed the flight, can't get another one for a week or even more. An unexpected illness, particularly a respiratory one (for which one might not be allowed on a plane). And so on. Moreover, and importantly, if a PR shows up at a POE and has obviously been gone for 1090 days, or even 1000 days, they are quite likely to be examined very closely about their actual "in Canada" time, and if they cannot document the 730 days in Canada, the odds of a removal order are high . . . remembering, again, the burden is on the PR to prove days in Canada. This makes sense. Someone who has spent over two years abroad from Canada has not shown that they have permanently settled in Canada. Under the previous law even that length of absence would have likely resulted in removal (revocation of PR). The current law is intended to be very generous. So cutting it close is not a good idea. The longer a PR is away, the more skeptical CBSA is likely to be in conducting a residency obligation examination at the POE, and the more skeptical they are likely to be of minimal proffers of proof of the days one says they were in Canada. The rational is obvious. Permanent residency is, well, for residency in Canada and if someone with PR status, by their absences from Canada, has demonstrated residency elsewhere, of course the level of scrutiny as to meeting the minimum residency in Canada obligation will be, as it should, very much elevated. |
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Bureaucracy is what bureaucracy does, or When in doubt, follow the instructions. Otherwise, follow the instructions.
BTW: Not an expert, not a Can. lawyer, never worked in immigration |
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Beaver
Senior Member Joined: 05 Feb 2010 Status: Offline Points: 406 |
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Thanks, scylla. As always, dpenabill explains his point very well. Vlad, please note what dpenabill mentioned about not exceeding January 3, 2013, that is the limit that you can be away. Very important.
Yes, vlad, you will have stay another 730 days to technically maintain your PR status when you arrive on or before January 5, 2013 because by 2015 your presence in Canada from 2008 to 2010 will not be counted anymore if you plan to leave again. (Personally, I would feel safer to return at least a week before January 5, 2013).
By January 3, 2014 for that period if you have stayed about a year from January 3, 2013, you will only still have accumulated 730 days from 2009. If you leave even for just a week during that time, you're technically deemed out of status.
However, you can leave Canada for another three years after January 3, 2015 if you want, come back January 3, 2018 and stay until January 3, 2020 and leave again for another three years - so on and so forth. I hope that helps!
Oh, don't forget about leap years, as well.
Edited by Beaver - 22 Apr 2010 at 11:59am |
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scylla
Top Member Joined: 29 Nov 2009 Location: Toronto Status: Offline Points: 838 |
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Vlad -
Beaver is correct. Read through dpenabill's reply as well. If you do what you have proposed in your original post, then you will lose your PR status. |
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Outland Spousal (Buffalo):
App recd: 05/28/2010 Sponsor approved: 06/28/2010 Processing started: 08/19/2010 Passport request: 10/01/2010 Landed: 10/05/2010 |
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dpenabill
Top Member Joined: 29 Nov 2009 Status: Offline Points: 6407 |
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Beaver stated it correctly and clearly.
See Appendix A "Residency Obligation" in the guide for applying to renew a PR card: http://www.cic.gc.ca/english/pdf/kits/guides/5445E.PDF It states the minimum requirements to meet the residency obligation:
So, No, no five year cycle. It is a straight five year rule, though a newly landed PR is given five years from the date of landing to acquire the minimum 730 days. Under any scenario, any PR who remains "outside Canada" for 1095 consecutive days is in breach of the residency requirement. (Recognizing that accompanying a Canadian citizen partner abroad, and in other circumstances, can count as "in Canada" days.) Since you landed Jan 1, 2008, you must have 730 days qualifying as "in Canada" on or before December 31, 2012. You have apparently done that. Indeed, if you were always in Canada until Jan 3, 2010, you would have until January 2, 2013 to return. As of January 1, 2013 you must have 730 days in the last five years from that date. Same for Jan 2, 2013, and so on. For example, if you attempted to return to Canada on January 5, 2013, you would be in breach of the residency requirement, since you would have been in Canada less than 730 days since Jan 6, 2008. This is how it works. Pretty simple. Other observations: You must be in Canada to apply to renew your PR card. If you are abroad when it expires, you will have to apply for a TD (travel document) to return to Canada and that will trigger a close look at whether you have met the residency obligation. The burden is on the PR to prove days in Canada. Any PR who has been outside Canada for an extended period of time (not sure what that is . . . more than two years for sure, perhaps more than six months and may depend on the subjective state of mind of the POE officer one encounters upon seeking re-entry) should be prepared to prove they have met (or, if in the first five year period, that they can meet the 730 day requirement by the fifth anniversary of their landing) the residency obligation. |
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Bureaucracy is what bureaucracy does, or When in doubt, follow the instructions. Otherwise, follow the instructions.
BTW: Not an expert, not a Can. lawyer, never worked in immigration |
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vlad1434
New Member Joined: 21 Apr 2010 Status: Offline Points: 7 |
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Hi pmm, I don't understand. Do you mean "yes" the immigration officers will determine that I no longer maintain Canadian residency requirements when I arrive back to Canada on January 3rd, 2010? if so, how then can I stay till January 3rd, 2017? thanks
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pmm
Top Member Joined: 29 Nov 2009 Status: Offline Points: 2279 |
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Hi
Yes, but when you arrive back on 03/01/15 you can't leave Canada even for 1 day until 03/01/17. |
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PMM
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vlad1434
New Member Joined: 21 Apr 2010 Status: Offline Points: 7 |
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Hi Beaver,
Are you sure about the five year period does not go in cycles? Also, when you said, I must show up in Canada again between December 2012 and January 2013, do I have then to stay another 730 total to maintain PR? kindly explain. Thank you |
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Beaver
Senior Member Joined: 05 Feb 2010 Status: Offline Points: 406 |
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Hi Vlad1434:
To answer your question, if you stay outside Canada until January 3rd 2015, you will be deemed to have not met the residency requirements by an immigration officer. For example, if you leave Canada and come back to Canada in 2010, a Canadian immigration officer will assess if you have spent at least 2 years in Canada between 2005 and 2010. The most direct way to show that you have fulfilled your residency obligation under the Immigration and Refugee Protection Act (IRPA) is to demonstrate that you were physically present in Canada for at least 730 days in the 5-year period immediately preceding this examination. PR requirements only count the last 5 years. If on January 3, 2015 you factor in your time spent between January 1, 2008 and January 3, 2010, then that will make the whole total to 7 years. To keep your PR status alive, you must show up in Canada again between December 2012 and January 2013. Rule of thumb is, you can only be absent for three years in the last 5 years to maintain PR status, which also means living in Canada for two years. The five year period does not go in cycles like what you are thinking. Edited by Beaver - 21 Apr 2010 at 11:09pm |
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