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majinjin25 View Drop Down
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    Posted: 15 Jan 2012 at 6:38pm

Hello all,
My Canadian PR card is expiring Aug this year, and i am U.S. Greencard. I am planning to permanently live in Canada but in the past i only stayed in Canada a few days. From reading the forum, i understand that i could enter the country and live up to 2 years then renew the card. That is a great advice.
1. I know with U.S. Greencard I would be fine entering Canada. Should i have to use Canadian PR card in order to proof that i have entered the country? But i'm afraid to be caught due to lack of residency requirement.
2. Can i enter Canada after Aug using U.S. Greencard? I have a family matter to handle which may cost a couple months delay.
3. With an Expired PR card, can i work legally? Does the employer require a valid PR card? How about Health Card and SIN card, drive license?
4. If i'm having a kid with Expired PR card, can my kid get Canadian PR?

Thank you!

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dpenabill View Drop Down
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Post Options Post Options   Thanks (0) Thanks(0)   Quote dpenabill Quote  Post ReplyReply Direct Link To This Post Posted: 15 Jan 2012 at 9:58pm

Quote 1. I know with U.S. Greencard I would be fine entering Canada. Should i have to use Canadian PR card in order to proof that i have entered the country? But i'm afraid to be caught due to lack of residency requirement.


You are in breach of the residency obligation. As such, at a POE they should recognize that you have PR and probably recognize that you are in breach of the residency obligation. As such you are inadmissible. They must allow you to enter Canada but will probably issue a removal order. Your time in Canada following the issuance of a removal order will not count toward compliance with the residency obligation. Even if you appeal, most probable outcome is loss of PR status.

Unless and until the removal order becomes enforceable (which would be when IAD denies the appeal; that being the most probable outcome), you may remain in Canada as a PR, work in Canada, and so on.


If you want to enter as a visitor you can agree to the surrender of PR status at the border. You lose PR status. You could then enter Canada as a visitor but not live in Canada, not work in Canada.



Quote 2. Can i enter Canada after Aug using U.S. Greencard? I have a family matter to handle which may cost a couple months delay.


Once a PR you remain a PR, and as such entitled to enter Canada (assuming you can get to a Canadian POE . . . without a valid PR card you should not be allowed to board commercial transportation destined for Canada, but you can, for example, drive to a land crossing POE by private vehicle), whether your PR card is still valid or has expired.

The fact that it is expired increases the odds dramatically (perhaps to almost a guarantee, albeit not quite) that you will be questioned at the border about compliance with the residency obligation and probably be issued a removal order.

If you approach a POE to Canada while your PR card is still valid, you could still be issued a removal order, and indeed I would expect you to be issued a removal order (assuming the BSOs are doing their job), but there is a chance you will be allowed to enter without being questioned regarding the residency obligation. Only in the latter instance, only if you are allowed entry without being questioned about your residency and thus no report is made and no removal order issued, only then could you remain in Canada to accumulate time toward getting yourself into compliance with the residency obligation.



Quote 3. With an Expired PR card, can i work legally? Does the employer require a valid PR card? How about Health Card and SIN card, drive license?


A SIN card should be sufficient for employment. I take it you did not obtain a SIN at the time you landed. May be difficult now to obtain one without a valid PR card. I do not know how one goes about doing this.

Probably not that relevant anyway because you are probably going to lose PR status anyway.

Obtaining health care coverage and drivers license raise similar issues: you may be able to use the CoPR but I do not know. The required documents one must present are dictated by the respective province and agency.




Quote 4. If i'm having a kid with Expired PR card, can my kid get Canadian PR?


Whether or not your PR card is still valid or is expired should have no relevance to the status of a newborn child. If the child is born in Canada the child will be a citizen of Canada. If the child is born outside Canada and neither of the child's parents are Canadian citizens, the child will have no status in Canada and would have to be sponsored for PR . . . a formality for a PR in good status. A problem, probably not possible, for someone in your circumstances (since you will most likely be losing PR status).

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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Harmonia View Drop Down
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Post Options Post Options   Thanks (0) Thanks(0)   Quote Harmonia Quote  Post ReplyReply Direct Link To This Post Posted: 17 Jan 2012 at 1:39pm
In response to:
 
3. With an Expired PR card, can i work legally? Does the employer require a valid PR card? How about Health Card and SIN card, drive license?
 
You can get a SIN card - but in order to get the SIN card you need photo ID and your landing documentation (i.e. COPR in your passport, and/or IMM1000B, PR Card, your drivers' license etc.). 
 
My spouse did it this way:  Got her Ontario drivers' license first (using her foreign passport and foreign driver's license --- NOTE this depends on if there is an exhange agreement between Canada and your country).  Once she got her license, she went to get the OHIP card and SIN card on the same day.  To get OHIP you need to have been in the country (i.e. prove you've been here) for 3 months I think.  She was able to do so with her banking records (electronic will NOT suffice) as well as her Ont. driver's license.    The SIN card - she needed her drivers' license, and her original IMM1000B (immigration papers).
 
NOTE: getting these documents does not mean you are guaranteed to get your PR Card renewed.  There's the whole issue of the residency obligations to live up to.... and even if you wait to be int he country long enough to meet the R.O., there are no guarantees that you will not be investigated further.  The R.O. is being in Canada for 2 years out of ANY given 5-year period.  Will CIC investigate beyond 5 years?  Who knows?  It's risky - and the results could be devastating if they decide to deny you status after you've spent 2 years putting your life together in Canada. 
 
Purely technically speaking - if you can make it into the country without losing your PR (i.e. voluntarily giving it up) you are legally able to work in most jobs, and are entitled to Health care once you have met the provincial requirements. 
 
Keep us posted on what you end up doing
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Beaver View Drop Down
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Post Options Post Options   Thanks (0) Thanks(0)   Quote Beaver Quote  Post ReplyReply Direct Link To This Post Posted: 17 Jan 2012 at 4:32pm
To clarify: CIC can only investigate the five years preceding the date of application for PR card renewal (if the applicant if a PR for more than 5 years).
 

Page 7

"For persons who have been permanent residents of Canada for more than five years, the only five-year period that can be considered in calculating whether an applicant has met the residency obligation is the one immediately before the application is received in the visa office. A28(2)(b)(ii) precludes a visa officer from examining any period other than the most recent five-year period immediately before the date of receipt of the application.

"Even if a person had resided away from Canada for many years, but returned to Canada and resided there for a minimum of 730 days during the last five years, that person would comply with the residency obligation and remain a permanent resident. An officer is not permitted to consider just any five-year period in the applicant's past, but must always assess the most recent five-year period preceding the receipt of the application."

 
Originally posted by Harmonia Harmonia wrote:

 
NOTE: getting these documents does not mean you are guaranteed to get your PR Card renewed.  There's the whole issue of the residency obligations to live up to.... and even if you wait to be int he country long enough to meet the R.O., there are no guarantees that you will not be investigated further.  The R.O. is being in Canada for 2 years out of ANY given 5-year period.  Will CIC investigate beyond 5 years?  Who knows?  It's risky - and the results could be devastating if they decide to deny you status after you've spent 2 years putting your life together in Canada. 
 
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dpenabill View Drop Down
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Post Options Post Options   Thanks (0) Thanks(0)   Quote dpenabill Quote  Post ReplyReply Direct Link To This Post Posted: 17 Jan 2012 at 9:03pm
To clarify even further:

Quote To clarify: CIC can only investigate the five years preceding the date of application for PR card renewal (if the applicant if a PR for more than 5 years


What you intend is true. But some words have more significance than might be appreciated at a glance.

Quote . . . the only five-year period that can be considered in calculating whether an applicant has met the residency obligation is the one immediately before the application is received in the visa office.


But the scope of what may be investigated is probably larger, and thus what may be considered NOT in the calculation but in the assessment of the PR's representations generally probably goes beyond the five year time frame.

This may be similar to the Citizenship Residency calculation: for calculating time present in Canada, only the relevant four years is considered, but the Federal Court has confirmed that Citizenship Judges may consider facts and circumstances before and after that period in their overall assessment of the applicant and the applicant's circumstances . . . including, relative to their fact-finding function regarding claims of presence during the relevant time period.

To some extent this may be more nuanced than most people need to know. But, for example, this may loom large in some cases . . . such as the one where a PR had been living abroad for many, many years, subsequently married a Canadian citizen and after living together for two years attempted to obtain a Travel Document to return to Canada based on the in-Canada rule for accompanying a Canadian citizen partner abroad. Denied. Denial upheld in Federal Court. And both CIC and the Federal Court justice considered the PRs history beyond the relevant five years that counts for calulating presence purposes. Bottom-line in that case was that, in considering the long history of not residing in Canada, they found that the individual was not accompanying the Canadian citizen abroad.

That case may be something of a unique, one-time thing, but the principle I cite it for here is that whenever CIC or CBSA is looking at a PR, they can look at and consider the person's entire history, even though for the calculation itself must be based on the relevant five year time frame.


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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ser111 View Drop Down
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Post Options Post Options   Thanks (0) Thanks(0)   Quote ser111 Quote  Post ReplyReply Direct Link To This Post Posted: 19 Jan 2012 at 4:05am
Could you please send the link to this case because it is very interesting 
this is another explanation which contradicts to this case
could you please give your  opinion about this article
Residency Obligations for Permanent Residents of Canada
Presented to the 13th Annual Immigration Law Summit
November 10, 2005

The Law Society of Upper Canada,

130 Queen Street West, Toronto
First, it shows that entering Canada and remaining for 730 days can repair any past breaches of residency

obligations. But it is also possible to repair the breach of residency obligations from outside Canada. For

example, a person that became a permanent resident as a single person might have lived outside Canada

for the past five years. As such he or she is in breach of his or her residency obligations, not having

accumulated 730 qualifying days in that time (we will assume for the purposes of this example that none

of the alternatives to physical presence are applicable). But if that person were to then get married to a

Canadian citizen and live with that Canadian citizen outside Canada for the next 730 days, then those 730

days would be qualifying days (see R28(2)(a)(ii)) and at the end of those 730 days they would have

repaired the breach of their residency obligations.
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Post Options Post Options   Thanks (0) Thanks(0)   Quote Harmonia Quote  Post ReplyReply Direct Link To This Post Posted: 19 Jan 2012 at 9:33am
Beaver --  Thanks for the link.  My spouse is in that situation (been away from Canada for a long time, but has returned w/o PR card -- as she is from a Visa-exempt country).  She's been here ever since.  Here status was never lost -- so she is able to work, get medical coverage, etc.  Before applying for the PR card - (her first) she waited until she met the residency obligations.
 
They will be processing her application soon. 
 
I have a feeling that dpenabill's statement re: what can be investigated has truth to it, however.   Of course we don't want a full-on investigation, but we have to roll with the punches.
 
Our 'case' is hopefully nearing a close.  Getting that PR card means we can travel down south (it's -19C here today w/windchill of -30C !).
 
Of course, the funny part is that she will be applying for Citizenship this summer.
 
My fingers and toes are crossed.  My spouse is getting axnious/excited/nervous with each day that passes.  I can only hope that "for once" we catch a break and that the PR card process goes smoothly.  Every other step of the way has been 'non-standard' and slight stressful/troublesome.
 
Will post full details of our case once we hear back from CIC.
Citizenship App Sent: December 2012
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Post Options Post Options   Thanks (0) Thanks(0)   Quote ser111 Quote  Post ReplyReply Direct Link To This Post Posted: 19 Jan 2012 at 12:55pm
Originally posted by dpenabill dpenabill wrote:

To clarify even further:
Quote To clarify: CIC can only investigate the five years preceding the date of application for PR card renewal (if the applicant if a PR for more than 5 years
What you intend is true. But some words have more significance than might be appreciated at a glance.
Quote . . . the only five-year period that can be considered in calculating whether an applicant has met the residency obligation is the one immediately before the application is received in the visa office.
But the scope of what may be investigated is probably larger, and thus what may be considered NOT in the calculation but in the assessment of the PR's representations generally probably goes beyond the five year time frame. This may be similar to the Citizenship Residency calculation: for calculating time present in Canada, only the relevant four years is considered, but the Federal Court has confirmed that Citizenship Judges may consider facts and circumstances before and after that period in their overall assessment of the applicant and the applicant's circumstances . . . including, relative to their fact-finding function regarding claims of presence during the relevant time period. To some extent this may be more nuanced than most people need to know. But, for example, this may loom large in some cases . . . such as the one where a PR had been living abroad for many, many years, subsequently married a Canadian citizen and after living together for two years attempted to obtain a Travel Document to return to Canada based on the in-Canada rule for accompanying a Canadian citizen partner abroad. Denied. Denial upheld in Federal Court. And both CIC and the Federal Court justice considered the PRs history beyond the relevant five years that counts for calulating presence purposes. Bottom-line in that case was that, in considering the long history of not residing in Canada, they found that the individual was not accompanying the Canadian citizen abroad. That case may be something of a unique, one-time thing, but the principle I cite it for here is that whenever CIC or CBSA is looking at a PR, they can look at and consider the person's entire history, even though for the calculation itself must be based on the relevant five year time frame.

Could you please send the link to this case because may be they have another issue to reject him. Could not find this case in federal court decisions. And this contradicts to the information which posted above
Thank you
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Post Options Post Options   Thanks (0) Thanks(0)   Quote dpenabill Quote  Post ReplyReply Direct Link To This Post Posted: 19 Jan 2012 at 4:41pm

ser111:

Quote . . . the only five-year period that can be considered in calculating whether an applicant has met the residency obligation is the one immediately before the application is received in the visa office.


This is in reference an applicable operational manual, not a particular case, not a Federal Court decision which can be linked. The manual can be linked and indeed Beaver posted a link to that manual above, which is, again, OP 10 Permanent Residency Status Determination (this is also a link). Note: this manual is an Overseas Processing manual, and in this regard is discussing the processing of an application for a PR Travel Document.

The article you posted in your first post, at 4:05 a.m., regarding the potential to "repair the breach of residency from outside" [Canada] by marrying a Canadian citizen and living with that citizen I am not familiar with. From what I understand of current policy, that should work. But the emphasis is on should and the caveat is that there is a case I am familiar with which denied a PR a Travel Document in such circumstances, and that denial was upheld by a Federal Court, resulting in the loss of PR status. This case has been relevant to a number of comments I have posted in recent weeks, and I did make an effort to find it again but did not find it. I think I have previously linked it somewhere in this forum but I have not had time to go looking for it sufficiently to find it again.

I agree, for someone in a similar circumstance, particularly someone who has been living abroad and in breach of the residency obligation but who in the meantime married a Canadian citizen with whom they have been living, and who wants to return to Canada as a PR, yes, indeed, it would be worth finding and reviewing that case.

You can search for it yourself at the Can II site, using key words in your search criteria to focus on residency cases . . . but it is not easy to structure a search which will return all PR residency cases without also including a large, large number of refugee cases (problem is that certain key words occur in the names of the entities and laws involved, so if you include "not refugee" in your search terms, for example, that tends to exclude not only the refugee cases but many other cases in which IRPA or IRB are spelled out).

I plan to go find it again myself but not right away. And, as I said, I am confident I already did post a link to it here, in one of these discussions about perserving PR status.

NOTE: That case quite likely entailed other issues and some serious credibility concerns, which may have underscored the decision to decide that in those particular circumstances the PR was not "accompanying" a Canadian citizen partner abroad.




Harmonia:

Sounds like there is NO cause to worry much if at all.

The operational manual linked by Beaver is for Overseas processing; it is the operational manual prescribing procedures attendant an application for a PR Travel Document submitted to a visa office overseas. The PR card application process is a little different.

The discussion, in OP 10, about calculating compliance with the PR residency obligation, is nonetheless applicable, particularly relative to what counts.

The operational manual which covers the processing of applications for a new PR card is ENF Permanent Resident Card (this is a link).

See section 8, in particular, pages 23 to 30 in ENF Permanent Resident Card.

For the PR card application, processed initially in Sydney, the main thing is whether or not it gets sent to the local office before a new PR card is issued. If your partner waits until having a significant margin over and above the 730 days of actual, physical presence before applying, it should not get sent to the local office before the card is issued; no guarantees, of course, but it should be processed per the routine procedure.

Sometimes CPC-Sydney will request additional information, but I think this is not that common and is limited to particular issues (see section 8.5 in ENF Permanent Resident Card). This may or not be preliminary to a referral to the local office for an investigation.

The routine procedure is for Sydney to do a preliminary assessment and if the criteria is met, they issue a new PR card and send it to the local office. The local office contacts the PR to come in and pick up the card. When the PR comes in, depending on a variety of factors, there is either a minimal, perfunctory interview (checking ID documents, for example, collecting the old PR card if applicable, confirming primary information), or a more extensive interview, how extensive depending of course on what the circumstances are and whether or not, or to what extent, the officer has questions . . . your partner should have no problem responding to whatever questions are posed and should be given the new PR card.

Some PRs, though, may not be able to fully satisfy the officer, at that point, and it can go in various directions from there, ranging from a brief delay while this or that check is done to the issuance of a A44(1) report of inadmissibility (if the officer reasonably finds the facts support the conclusion that the PR is inadmissible, such as that the facts establish a breach of the residency obligation and there are not H&C grounds warranting preservation of PR status).

Going back to an application referred to the local office for an investigation: see section 8.6 (page 26) in ENF Permanent Resident Card.

The preliminary assessment in Sydney might identify issues for some PRs. For some applicants it may be apparent on the face of the application that they are not eligible to be issued a new PR card or required information is missing. I am not sure, though, whether or not Sydney denies PR card applications outright, but in some circumstances they return some applications.

If Sydney identifies issues, including for example an apparent breach of the residency obligation, they may request additional information from the applicant or send the application to the local office for an investigation; they can also request additional information and then send the file to the local office for an investigation.

Specific examples of situations "requiring referral" are stated on page 27 of the manual, ENF Permanent Resident Card. It is a long list.

What an investigation entails varies, probably varies greatly, at one end of the range not much more than a close review of GCMS and a query or three into readily accessible databases, at the other end of the range field officers doing police like-work.

I think the latter, where someone is actually in the field doing typical police-like work, is rare.

The operational manual describes a referral to the local office as a referral "for further investigation." Beyond that, the local office may in turn refer a case to CBSA for an investigation. I suspect, though, there are varying degrees of investigation in both respects.

In most cases, I suspect that the investigation is not much more than the close review of GCMS (including, in particular, a close look at all FOSS notes) and a query or three into readily accessible databases, plus some requests for information and documentation from the PR, including perhaps an interview with the PR.

The difference between an investigation and simply an assessment attendant routine processing is probably (I do not know this with any certainty of course, just extrapolating from all that I have learned about this stuff in the last four years plus some previous advocacy experience dealing with various bureaucracies in the past) a fine line. There may be some formality, for example, that must be met to conduct some queries otherwise restricted by policies and practices intended to protect privacy (this is probably what the referral to CBSA is largely about; it is my impression, for example, that CIC personnel do not have direct access to CBSA travel records, but by referring the matter to CBSA those records can be obtained and compared to other information, including the PR applicant's declared presence and absence).

But, for example, while again I do not know for certain, I believe that almost any assessment attendant routine processing includes running queries into databases for criminal records, including at minimum the U.S. and Canadian databases, probably some database reflecting Interpol records. This amounts to an investigation of a sort, or a background check of a sort.

I believe there is a lot of if . . . then . . . decision-making in any routine assessment; if this or that, then additional queries, checks, or such are done, and then if this or that, then more queries and checks, an escalator-like progression of if . . . then . . . with only a very few climbing into an investigation requiring someone to do something beyond what they can do from their desk.


Most of all, Harmonia, it does not sound as though your partner has much if anything to worry about. A PR who has been physically present in Canada (in contrast, say, to being in-Canada though physically abroad, based on criteria like being employed for a Canadian company or while accompanying Canadian citizen spouse) for more than 730 days should have little or no problem in applying for a new PR card.

And being from a visa-exempt country does, indeed, make life much easier for a PR who breaches the residency obligation.
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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Post Options Post Options   Thanks (0) Thanks(0)   Quote Harmonia Quote  Post ReplyReply Direct Link To This Post Posted: 20 Jan 2012 at 9:44am
Dpen:  Once again, thank you so much for your extensive research and subsequent response to our particular case.  Our reasons for worrying that 'something' will go wrong are largely derived from our experiences with Immigration to date.  Nothing has gone smoothly, and everything has been one form of a 'workaround' or another.  Honestly, ditching her PR status and re-applying would most likely have gone much quicker (in other words, we'd be all done by now).  That being said - I didn't marry her for immigration purposes -- so the fact that she might be able to retain her original status (as opposed to me sponsoring her) makes us both happy.
 
There have been mistakes made on both parts (ours AND CIC's).  These lead us down the path less travelled - but at the same time, we seem to be arriving at the original destination.  I just wish the view had been better :)
 
Can't wait to write the 'happy post'... and the 'story' of course.  This road has been an interesting one, and we've had our moments of uncertainty in the immigration offices more than once throughout the past 3 years.
 
Stay tuned...  (and THANKS dpen!)
 
Citizenship App Sent: December 2012
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