This is a very long post, as I am perhaps all too wont to do.
The question really is quite simple and the answer is also simple.
But the technically correct answer belies what is really at stake. It is perhaps easy enough to point that out, and as others have quite succinctly stated, already, the U.S. commuter scenario poses risks.
It may be enough, that is, to state the bottom-line: a job in the U.S. is not going to help make a case for Canadian citizenship. On the contrary, it is likely to pose significant risks if not outright problems. In other words:
Caution: commuters to the U.S. beware.
But I think this question invites a more thorough examination into why there is a rather large discrepancy between the technically correct answer (days commuting to the U.S. from Canada count toward the presence calculation) and the serious risk of problems any U.S.-commuter-applicant will likely encounter.
Thus I go long . . . very long.
punk said:
If someone got a job in US and is travelling every day to US would those days count against physical presence in Canada ?
[quote author=punk]
My question is if this is counted as physical presence or not. If it is, then it is easy explainable, but if it not then it is obviously a problem[/quote]
The simple, short answer, which is the
technically correct answer, is that under the new law a day at least partially spent physically in Canada counts as a day physically present in Canada. This is actually the same as how days are calculated for compliance with the PR Residency Obligation.
As most of the responses intimate, however, the simple, technically correct answer at the least overlooks, and perhaps belies, the potential risks in how these calculations are likely to be assessed, in practice, by CIC.
Note: there is no reporting about how CIC has in fact applied the new requirements, it is too soon, and the new law entails significant differences in what is calculated. The new law has two physical presence requirements in contrast to the
residency requirement in the old law. And the new law has an
intent element which the old law did not have.
The simple, again technically correct answer, is nonetheless easy to discern from the law itself and CIC's information about it: the presence requirement in the new law counts days the PR was physically present in Canada. And the new online physical presence calculator affirms that this indeed includes counting all days present, even days the PR exited and days the PR returned to Canada.
It warrants further noting that the current instructions call for declaring
all cross-border trips, including all day-trips.
Commuter cases historically
While
U.S. commuter cases reflected in the Federal Court decisions have been rare, and anecdotal reports in the forums have been relatively few in number as well, all indications point toward a substantial
risk of elevated scrutiny at the least. Whether that amounts to a "problem" or not is, perhaps, subjective, but the extent of the "problem" is very much dependent on other factors and circumstances.
Thing is, issues rarely arise in distinct, clearly articulated parameters, but are typically tangled in multiple issues, coloured if not tainted by less than certain circumstances. For example, the
oft cited Sotade decision is perhaps a typical illustration of how a commuter case might be tangled in other issues which can dramatically influence the approach taken by CIC and, ultimately, the outcome (
Sotade was denied and that was upheld by the Federal Court).
Despite some anecdotal reports otherwise, my strong impression is that this is true for American citizens as well, recognizing the broad range of factors which can influence how it goes in any particular case, ranging from easy to difficult to being denied. That is, even though some American commuters (or at least very frequent travelers to the U.S.) have reported their path to Canadian citizenship was relatively quick with smooth sailing, the risks are substantial . . . largely rooted in the nature of the commuter's case: the absence of employment in Canada to corroborate residency/presence in Canada; strong connection to foreign country at the least raising questions about residency/presence in Canada; and documentation of being abroad extensively (which is inherent in working abroad). This is not to say that American commuters, or American citizens applying for Canadian citizenship generally, are likely to face degrees of scrutiny equal to that faced by those from other countries . . . there are many other factors which incidentally distinguish applicants, including some already mentioned by others such as the
stepping-stone element, among other things like the strength of motives to obtain a Canadian passport for its convenience.
In any event, historically, past anecdotal reports and Federal Court cases like the
Sotade decision, indicate that for a commuter there is a substantial risk CIC will
question if not doubt the applicant's declarations of presence in Canada.
Under both the old law and new law, the burden is on the applicant. If put to the test, the applicant can find it difficult to prove he (or she) commuted from Canada all those days, rather than spending some or many or a lot of those days entirely in the U.S. . . . especially since the employment itself is substantial evidence the individual was
outside Canada those days, leaving it to the applicant to prove he was inside Canada at some other time during those same days (days it is clear he was
outside Canada).
Going long in analysis and related observations:
This is one of those questions which highlight the difference between technicalities and what is practically in play. The latter has tended to loom larger and more importantly, albeit rather imprecisely and, as a consequence of the impreciseness, unevenly. After all, if CIC is not satisfied the applicant has proven his (or her) presence in Canada for these or that given days, what difference does it make if those days should technically count . . . practically the day only counts if the applicant proves presence that day, those days, to the satisfaction of CIC (and/or at least the Citizenship Judge).
CIC does not have a crystal ball and thus must make decisions based on CIC's assessment of the
evidence.
There is a lot of compelling evidence showing the applicant was abroad, outside Canada, if the applicant has a regular job outside Canada. For the commuter to the U.S., the evidence clearly indicates the PR was abroad work days. Thus, such an applicant may have to convincingly prove he (or she) was otherwise in Canada for each of those days, each of those days it is clear that the applicant was outside Canada for at least a significant portion of the day.
Thus, anyone contemplating making a citizenship application whose period for calculating presence includes a significant period of commuting to the U.S. (let alone anyone still commuting to the U.S., which poses additional issues), would be prudent to thoroughly, objectively assess their case, carefully considering what is at stake:
For post June 11, 2015 applications, presence in Canada for any period of a day counts as a day physically present in Canada. Thus, technically the PR in Canada commuting to a job in the U.S. gets credit for each day the commute begins or ends in Canada, for all days in the commute if there are no overnight stays for two or more consecutive nights.
But the applicant still needs to satisfy CIC of his presence in Canada at some time during that day, for each day the applicant expects to count toward the total of days present in Canada.
Note: it is not a matter of what days might count "
against physical presence." The issue, the qualifying requirement, is based on what is
affirmatively established as the number of days physically present. Days that count, count. But the applicant has the burden of proving presence on any day to be counted as present. Thus, for any day the applicant's evidence falls short of proving presence that day, it is not a day that counts.
To steal a line from a Denzel Washington character in a cop movie, a rather truthful line it should be noted:
It's not what you know, it's what you can prove.
In contrast, for the commuter, since the applicant has a job in the U.S., that job alone is convincing
evidence of presence outside Canada for all those work days. Thus, the risk is the applicant may have difficulty submitting evidence which proves, to CIC's satisfaction, presence in Canada those same days, those days clearly (otherwise) outside Canada.
That is, it is not enough for the commuter-applicant to know he was in Canada and commuted to a job in the U.S. An
explanation is not likely to suffice if CIC has questions, let alone doubts. The commuter-applicant may be compelled to prove each and every return to Canada, or at least sufficiently document enough of the returns to leave no question about actually commuting from Canada. (And even then, if the commuting is ongoing after applying, there is still the intent requirement looming ominously.)
Again, CIC does not have a crystal ball. CIC must rely on the evidence and its inferences based on the evidence. Strong evidence of being outside Canada on a given day, and particularly for twenty or so days a month (work days for someone employed in the U.S.), tends to weigh against an inference the individual was present in Canada those days. Thus, the risk, a rather substantial risk I suspect, is that the applicant will be required to submit fairly convincing evidence of beginning or ending those days in Canada, perhaps with no favourable inferences for any days the applicant does not have direct evidence (that is, objective evidence beyond the individual's declarations) of being in Canada those particular days.
In contrast, for most applicants, for applicants whose employment and place of residence are both in Canada, and no indications of unreported absences, CIC tends to infer the applicant was in Canada days between the date of last entry and the date of next exit . . . that is, days in Canada which are actually documented may be relatively few, it being inferred the applicant was also in Canada the
in-between-days. This sort of inference, about
in-between-days, may not be made for an applicant with a strong connection abroad, like a job outside Canada. Indeed, the inference could go the other direction, CIC inferring the applicant was outside Canada any days there is not direct documentation of presence in Canada.
Intent to continue to reside in Canada:
Remember, all post June 11, 2015 applicants must have the intent to
continue to reside in Canada if granted citizenship. A job in the U.S. is almost certain to invite elevated scrutiny, if not outright skepticism, about the applicant's intentions.
This is an area which in turn may also highlight one of the differences between American citizens who are Canadian PRs applying for Canadian citizenship, and those who are not American citizens but who have otherwise obtained status to work in the U.S. The latter have taken affirmative steps to acquire and to maintain status in the U.S. reflecting the deliberate maintenance of a substantial connection to the U.S. (the American citizen, in contrast, simply has status), which is (to at least some degree)
inconsistent with a commitment to residing in Canada. Where one is employed, after all, is one of the key indicators of residency. It is also a key indicator of intent, particularly when assessed in conjunction with the intent involved in acquiring the status to work in the U.S.
In the latter regard, note that a Green Card alone may be sufficient to undermine an application for Canadian citizenship. This was not so under the old law, where there was no
intent element. But under the current law (for all post June 11, 2015 applications), intent is an element, and given the requisite intent for maintaining Green Card status in the U.S., those with a Green Card are likely to face substantial difficulty persuading CIC to approve them for citizenship.
Even under the old law, CIC has long targeted Green Card holders for elevated scrutiny, RQ, and depending on the circumstances, significant risk of being rejected. We do not know with certainty, but it seems most likely this will loom as an even more difficult issue going forward . . . Canadian PRs being compelled, in a sense, to make a definitive choice between Canadian citizenship and U.S. status.
Residency versus physical presence:
The old law imposed a
residency requirement (three years resident-in-Canada). Physical presence was merely a means for testing or assessing residency, just one among multiple tests for ascertaining whether the applicant met the qualifications for citizenship.
The new law imposes two physical presence requirements (1460/six years and 183 X 4 CY), in addition to other requirements not involved in the old law (tax filing compliance for 4 TY and the
intent requirement).
The main difference is obvious. The new law does not allow for any shortfall cases. The key element depends on an arithmetic calculation: add up the number of days physically spent in Canada.
Despite the obvious difference, and some profound differences beneath the surface as well, it is likely that general residency factors will continue to be important if not critical.
Part of the problem with the old law was that the residency requirement was not clearly defined, and while its instructive provisions regarding calculating residency prescribed counting days present in Canada, the relationship between strictly calculating days and assessing residency remained, at best, fuzzy for more than three decades.
The vague and oft conflicting approaches to assessing residency tended to divert attention from the role of evidence in the process of determining the facts.
This aspect of determining the facts will continue to play a big role going forward.
This is in large part about proof of residency constituting substantial evidence of presence, in the sense of corroborating presence. The converse is the more salient, telling context: the absence of strong proof of residency tends to be evidence controverting presence.
This is not going away. Sure, this may be characterized as speculation by me, but place of employment, place of abode, family and community ties, and other indications of a life residing in Canada will almost certainly continue to be a huge part of any case in which CIC perceives a
reason-to-question-presence, much like it did for decades relative to cases involving (from CIC's perspective) a
reason-to-question-residency.
One might say that whereas under the old law, proof of presence was evidence of residency, and under the new law proof of residency will be evidence of presence, the analytical direction is not what's important. What is important is to recognize that applicants with weak proof as to employment in Canada, or as to their connection to a place of abode in Canada,
covering all periods of time declared to be in Canada, are likely to be at risk for the equivalent of RQ. (Will CIC change the form to be a "Presence Questionnaire?" I do not know.) That process will continue to probe not just travel versus presence, but also (again) the standard indicators of residency: place of employment (even if as a stay-at-home partner), place of abode, family and community ties, and so on.
Bottom-line: a job in the U.S. is not going to help make a case for citizenship. On the contrary, it is likely to pose significant risks if not outright problems.
In other words:
Caution: commuters to the U.S. beware.
