Meeting PR residency requirements while working in US

[vnarang]

Hello:

I am currently on a H-1b in the US and completed the landing process for Canada about a year ago. I am aware that the CIC website mentions that your time outside of Canada is counted if your employer in Canada sends you to US for work assignment. I have the following questions:

1. Has anyone done this and were they successful in establishing a residence/proof in Canada and then working in US to count that time towards Canada residency requirements?
2. What status would you be working on? H1b? B1/B2?
3. Does the Canada office need to be the main headquarters?
4. Is your paystub generated in Canada or US? If in Canada then H1b status wont be applicable and it would only be B1/B2?
5. Is there any impact on your current approved I140? Green card is for the future so technically there should not be any impact

What other factors to consider?

Thanks
Vikas

 

[DEEPCUR]

You chances of achieving this is close to nil or even negative. I have not seen a single person in this forum being able to achieve this.

 

[vnarang]

You chances of achieving this is close to nil or even negative. I have not seen a single person in this forum being able to achieve this.

Appreciate the response, but I am not looking to see what my chances are. I do work with an employer that has US and Canadian operations. I wanted to understand from a technical stand point about the potential obstacles in doing so. More importantly the company structure..do the headquarters have to be in Canada?

 

[scylla]

Hello:

I am currently on a H-1b in the US and completed the landing process for Canada about a year ago. I am aware that the CIC website mentions that your time outside of Canada is counted if your employer in Canada sends you to US for work assignment. I have the following questions:

1. Has anyone done this and were they successful in establishing a residence/proof in Canada and then working in US to count that time towards Canada residency requirements?
2. What status would you be working on? H1b? B1/B2?
3. Does the Canada office need to be the main headquarters?
4. Is your paystub generated in Canada or US? If in Canada then H1b status wont be applicable and it would only be B1/B2?
5. Is there any impact on your current approved I140? Green card is for the future so technically there should not be any impact

What other factors to consider?

Thanks
Vikas

We've seen many example here of how IRCC applies this rule. To be able to count your time outside of Canada towards PR, you would first need to be hired for a role in Canada (meaning working for the company at a physical location in Canada) once you are a PR. You would need to remain in this role for a while after you have become a PR, likely at least 8-12 months in your case so that it wouldn't look like you're gaming the system. The Canadian location does not need to be the main headquarters - however the company does need to be Canadian.

So short answer is that you cannot pull this off by continuing to work on an H-1B in the U.S. after you become a PR. You'd need to take up a position in Canada for quite a while and then be transferred to a role in the U.S. at a later date.

 

[scylla]

Appreciate the response, but I am not looking to see what my chances are. I do work with an employer that has US and Canadian operations. I wanted to understand from a technical stand point about the potential obstacles in doing so. More importantly the company structure..do the headquarters have to be in Canada?

To the best of my knowledge the company doesn't have to be originally Canadian. However it must have real income generating operations in Canada, employees in Canada, be incorporated in Canada, file business taxes in Canada, etc.

 

[Buletruck]

You also need to be assigned to the Foreign location for a specific period, with an anticipated return date to a position within the same company in Canada. It isn’t an open ended exemption.

 

[scylla]

You also need to be assigned to the Foreign location for a specific period, with an anticipated return date to a position within the same company in Canada. It isn’t an open ended exemption.

Yes - I forgot about that.

 

[vnarang]

To the best of my knowledge the company doesn't have to be originally Canadian. However it must have real income generating operations in Canada, employees in Canada, be incorporated in Canada, file business taxes in Canada, etc.

Thank you for your response. On IRCC' website, it is simply stated that your time is counted if your company in Canada sends you to the US to work. Where are the details about being employed for certain months and so on stated? What kind of documentation is needed to justify the case? In my case, the canadian office is Inc in Canada, registered as a separate entity in Canada, has revenue generated from its operations in Canada as we have assets over there, so all those items are check off. Where are all the specifics stated? Is that a loose item?

Thanks

 

[scylla]

Thank you for your response. On IRCC' website, it is simply stated that your time is counted if your company in Canada sends you to the US to work. Where are the details about being employed for certain months and so on stated? What kind of documentation is needed to justify the case? In my case, the canadian office is Inc in Canada, registered as a separate entity in Canada, has revenue generated from its operations in Canada as we have assets over there, so all those items are check off. Where are all the specifics stated? Is that a loose item?

Thanks

OK - I was wrong. Company needs to have a head office in Canada. The very very high level requirements are below. Somewhere there is a manual that provides more details. This is not a loose item. IRCC is extremely consistent in the application of this rule.

https://www.canada.ca/en/immigration-refugees-citizenship/services/application/application-forms-guides/guide-5445-applying-permanent-resident-card-card-first-application-replacement-renewal-change-gender-identifier.html

If outside Canada working for a Canadian business or public service, provide:

• proof that the company has a Canadian head office;
• proof of your full-time job and
• if you will be working for that company when you return to Canada.

EDIT: There are more details in the same document:

Situation 2. Employment outside Canada
You may count each day you worked outside Canada if:

• 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 job 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; and
• you will continue working for the employer in Canada after the assignment.

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:
  • length 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 abroad on a full-time basis as a term of your contract; and
  • a description or copy of the position profile regarding the assignment or contract abroad, and
• confirmation that the business was not created primarily to let you meet 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 (NOA)
• T4 slips
• Any other proof you want us to consider

 

[scylla]

Thank you for your response. On IRCC' website, it is simply stated that your time is counted if your company in Canada sends you to the US to work. Where are the details about being employed for certain months and so on stated? What kind of documentation is needed to justify the case? In my case, the canadian office is Inc in Canada, registered as a separate entity in Canada, has revenue generated from its operations in Canada as we have assets over there, so all those items are check off. Where are all the specifics stated? Is that a loose item?

Thanks

Following up on my post above, below is the bit where your situation fails to meet the requirements since you are already in the U.S. role. It's not a temporary assignment where you were originally employed in Canada and will return to that role in Canada once your U.S. assignment is over.

• details of your assignment or contract outside Canada such as:
  • length 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 abroad on a full-time basis as a term of your contract; and
  • a description or copy of the position profile regarding the assignment or contract abroad, and
• confirmation that the business was not created primarily to let you meet your residency obligation

Again, IRCC is very consistent in their application of this rule. It's not going to fly.

 

[vnarang]

OK - I was wrong. Company needs to have a head office in Canada. The very very high level requirements are below. Somewhere there is a manual that provides more details. This is not a loose item. IRCC is extremely consistent in the application of this rule.

https://www.canada.ca/en/immigration-refugees-citizenship/services/application/application-forms-guides/guide-5445-applying-permanent-resident-card-card-first-application-replacement-renewal-change-gender-identifier.html

If outside Canada working for a Canadian business or public service, provide:

• proof that the company has a Canadian head office;
• proof of your full-time job and
• if you will be working for that company when you return to Canada.

EDIT: There are more details in the same document:

Situation 2. Employment outside Canada
You may count each day you worked outside Canada if:

• 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 job 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; and
• you will continue working for the employer in Canada after the assignment.

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:
  • length 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 abroad on a full-time basis as a term of your contract; and
  • a description or copy of the position profile regarding the assignment or contract abroad, and
• confirmation that the business was not created primarily to let you meet 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 (NOA)
• T4 slips
• Any other proof you want us to consider

This is so helpful and to the point! Appreciate your feedback. Few more outstanding questions. So, I don't see anywhere that it states that you have to employed in Canada for XX months. It could simply be that you were there for a month and then the company sends you to the US, provided that all the documentation you mentioned is in place to not have a negative impact later. Additionally, the end date, I could have it 2 years later to show that I would be coming back to Canada. Is there an issue with that? The reason for this is because my US date might also be near in couple years, so before final decision time, I would get clarity while meeting the requirements of Canada (in a legal way) to make a decision accordingly. Lastly, if this works, what would be the visa status to work in US, still my current H1b? I have read in forums about taxes and all, but my specific question for H1b is to understand if the paystub has to be generated from the Canadian office, which would thereby mean that H1b is not a valid visa to work in the US, and I would have to look at L1 or something?

Thanks again for your help!

 

[scylla]

This is so helpful and to the point! Appreciate your feedback. Few more outstanding questions. So, I don't see anywhere that it states that you have to employed in Canada for XX months. It could simply be that you were there for a month and then the company sends you to the US, provided that all the documentation you mentioned is in place to not have a negative impact later. Additionally, the end date, I could have it 2 years later to show that I would be coming back to Canada. Is there an issue with that? The reason for this is because my US date might also be near in couple years, so before final decision time, I would get clarity while meeting the requirements of Canada (in a legal way) to make a decision accordingly. Lastly, if this works, what would be the visa status to work in US, still my current H1b? I have read in forums about taxes and all, but my specific question for H1b is to understand if the paystub has to be generated from the Canadian office, which would thereby mean that H1b is not a valid visa to work in the US, and I would have to look at L1 or something?

Thanks again for your help!

The 8-12 months is my recommendation if you really want to be able to count the time outside of Canada towards PR.

Look - IRCC is not stupid. They have seen people try to pull all sorts of stunts to try to be able to count time spent outside of Canada towards PR when they didn't actually qualify. This includes coming to Canada for a short period of time like what you are suggesting or even self incorporating (starting their own company) to them hire themselves outside of Canada. The requirement is that you are a Canadian based-employee that has been assigned to a role outside of Canada. But you aren't that. You are a U.S based employee. A month or two won't establish you as a Canadian employee - you'll be a U.S. employee who temporarily worked in Canada. Again, IRCC isn't dumb and you're by no means the first person to try to pull something like this. It won't work. They have seen this before and your employment history will clearly show what you've done and that you don't meet the requirements to be able to count your time outside of Canada towards PR.

I can't comment on H1B rules. I'm not familiar enough with those.

 

[vnarang]

The 8-12 months is my recommendation if you really want to be able to count the time outside of Canada towards PR.

Look - IRCC is not stupid. They have seen people try to pull all sorts of stunts to try to be able to count time spent outside of Canada towards PR when they didn't actually qualify. This includes coming to Canada for a short period of time like what you are suggesting or even self incorporating (starting their own company) to them hire themselves outside of Canada. The requirement is that you are a Canadian based-employee that has been assigned to a role outside of Canada. But you aren't that. You are a U.S based employee. A month or two won't establish you as a Canadian employee - you'll be a U.S. employee who temporarily worked in Canada. Again, IRCC isn't dumb and you're by no means the first person to try to pull something like this. It won't work. They have seen this before and your employment history will clearly show what you've done and that you don't meet the requirements to be able to count your time outside of Canada towards PR.

I can't comment on H1B rules. I'm not familiar enough with those.

Thanks. That makes sense

 

[Buletruck]

Some actual cases to give you some insight as to what the courts have ruled. Details in both on short landings and the effect on the appeals. The second case is particularly relevant, as the basis is similar to your proposal and situation. Note that while the appeal was allowed, it was only done due to a previous PR renewal on H&C grounds. Obviously, every case is different, but it gives you an idea how the law(s) are applies.

https://www.canlii.org/en/ca/irb/doc/2018/2018canlii121460/2018canlii121460.html?searchUrlHash=AAAAAQAnUmVzaWRlbmN5IG9ibGlnYXRpb24sIENhbmFkaWFuIGVtcGxveWVyAAAAAAE&resultIndex=22

https://www.canlii.org/en/ca/irb/doc/2018/2018canlii118633/2018canlii118633.html?searchUrlHash=AAAAAQAnUmVzaWRlbmN5IG9ibGlnYXRpb24sIENhbmFkaWFuIGVtcGxveWVyAAAAAAE&resultIndex=33