A situation in my PR card renew !please help!

[RT007]

Hi everyone,

I am very worry about my situation in the current PR card renew application, and I believe I did not make a smart move, how can I fix it?


Situation:

Sep2017 would be the time that I landed for 5 years, and also the time when my PR card expires. I did not live in Canada from Sep 2012 to May 2015. From May 2015 until now, I was hired by a Canadian company and got sent to their supplier factory in China to do quality control tasks, the job is a full time job and I have been paying tax in Canada since I was hired.

I see that my PR card is expiring soon, so when I was reporting work in Canada in early July 2017, I submitted the renewal application. I submitted the document as instructed by the official guide:

1) Application form
2) check list
3) Passport copy(photo page only)
4) PR card copy
5) T4 of 2015 and 2016
6) NOA of 2015 and 2016
7) Employment contract (expires in 2018)
8 ) Job offer letter
9) A letter from the employer (stating the my status in the company, and that i was sent abroad to perform duties, and the company & job was not set up just to let me meet the residency requirement)
10) NOA of the company 2016
11) Business registration copy
12) Annual assessment of my job performance 2016
13) communication email showing the supplier agreed with the employer to place me at their production site in China
14) Photo

After reading some articles in the internet, I learned that IRCC is being very strict to applicant who were present in Canada less than 2 years, and they will not just issue the new pr card to me without a very detail investigation on my job placement in China that I used it to fulfil the residency requirement.

My company source molding parts from China, and my job is to station at their supplier production site to ensure the quality of these components meet the standard before shipment. I issue report after the inspection and save the file. I do not have much written communication record with the company in Canada. I am worry that if I am getting the questionnaire, I won’t be able to give much more evidence to prove my job existence and lead to a refusal.


Side information that may/may not help:

a) I bought a place in Canada and planning to physically live there after my PR card is renewed, the closing date of the place is in Mid Sept 2017 (just before my PR card expires)
b) I got married in Sep 2016 in Canada, with a non-resident (we met in Hong Kong and we are living in HK now), we plan to move to Canada after my PR card is renewed, so that I can sponsor her


Questions:

In your opinion…
1) Will I be refused straightway without asking to attend interview or to fill in questionnaire?
2) If not the case in 1) I know I will be definitely ask to attend interview, but what would be the chance for me to get the questionnaire too?
3) What is chance that they send my application to local office (I heard is more strict), and where is “local office” anyway?
4) Is it correct that if I do not respond to the interview and questionnaire request after 180days, my application would be "abandoned", and that means they will not proceed my application any further (not a refusal), and I can still physically live and work in Canada without problem (if I can get in to Canada), right? And after I am solidly living in Canada for 2 years, can I re-apply to renew my pr card again?
5) If I do not have confidence to convince them I am working abroad for the Canadian company and fails to fulfil the residency requirement, what is the best I can do now at this moment to avoid losing my PR status?
6) When I travel by private car from US to Canada, how do I tell the officer that I “do not (expired)” have the PR card? I’m holding Hong Kong passport, so it’s visa free to enter Canada as visitor, can I claim I am a visitor? Will they know in the system that I am not? Bear in mind that I will also have an US entry stamp in my passport suggested that I landed in US just before I am trying to enter Canada, so they will have the “why are you flying to US and enter Canada? And not directly flying to Canada?” in their mind. I am struggling to find the “right” reason to explained to the officer at US/CA boarder. Can you help?


Sorry for all the details and long questions. I would be very grateful if anyone can provide some guidance. Thanks.


BR

Ricky

 

[Bs65]

So just to clarify you were in Canada early July 2017 and submitted your PR card renewal whilst in Canada to be sent to a Canadian address ?

 

[RT007]

So just to clarify you were in Canada early July 2017 and submitted your PR card renewal whilst in Canada to be sent to a Canadian address ?

Hi Bs65,

That's right, I was in Canada from 30Jun to 14July 2017 to send out the application and my mailing address is also in Canada.

BR

Ricky

 

[Buletruck]

When you were hired by the Canadian company, were you in Canada? Does the letter from them state a duration of your term?

 

[RT007]

When you were hired by the Canadian company, were you in Canada? Does the letter from them state a duration of your term?

Hi Buletruck,

I was in canada for the interview on Feb2015, I went back to HK and later received the job offer to start working in May in the china location. Before I started in May, I went to Canada to receive the training from the company for a week (Apr), and signed the contract at that time. The contract requested me to start working in china from day 1, the training in canada was not stated in the contract.

I have work for this company for a year in canada when I was holding work permit in 2008.

Yes, the letter stated that the company have reverently renew my contract to an additional of two years .

BR

Ricky

 

[RT007]

The letter from my employer is as follows:

To whom it may concern,


Xxx Inc is a Canadian registered company incorporated under the laws of Canada that has an ongoing operation since 1995.

The company manufactures molds for plastic products, and supplies to the domestic market. The company has a full record of annual reports and declarations available in the database of Registraire des entreprises to proof its capability to generate income and profit:

Quebec Business Number (NEQ) zxxxxxx


Xxxxx is a full time employee at Xxxxx Inc who has been assigned to work aboard in Hong Kong and China to monitor the component production quality at our supplier sites. His position is Quality Control officer and the length of assignment was 3 years started from May 01, 2015, the contract was recently renewed for an additional 2 years due to the effectiveness of the job function.


The tasks performed by Xxxx added value to the company operation by assuring the supplier production conforms to the technical and quality requirement of Xxxx Inc, and it is confirmed that the business or job position is by no means created to meet residency obligation of the employee.


.


Sincerely,




Xxxx

President of Xxxx Inc

 

[Buletruck]

So, looking at it pragmatically (not trying to offend you in any way), these are the questions I'd be preparing for if it comes to a secondary review....

• Are you related to an owner/director of the company? (My gut feeling is if you answer yes, they will assume that, regardless of what the letter says, the position was created for you)
• When you got the job you were outside of Canada I am assuming. So were you hired specifically for the fact you lived in China/HK at the time?
• Are you the only employee in China and where are you based? Is there a country manager or director in country as well? Having a QC guy in China to check finished product seems a little "over the top". Are you in the suppliers facility or does the company maintain an office there?
• Coming from a manufacturing background, and having spent 10 years working on contracts in the region, why would a company need to have a QC person, on site, when thousands of other companies manage the same sort of thing without having the need to maintain staff in country? (I think this one will depend entirely how savvy the VO is reviewing the application)
• If you just bought a house and have no dependants in Canada, why would you be paying taxes in Canada? You have no Canadian income.

Again, not making a judgement, just trying to look at it through the eyes of a VO who see's these day in and day out. I'd be preparing a strong defence of your position. Who knows, they may take it at face value, but given how long you have been out of Canada (you have spent virtually no time in Canada to this point since landing), I suspect they will dig a bit deeper.

As for your questions (and other can correct me if I am wrong):

1. They will send you notification your card has gone to secondary review. At that point the renewal times go out the window and it's entirely up to them when it gets processed. If they find you are not in compliance with the RO, they will notify you and give you the opportunity to appeal.
2. See above
3. They may have the local office investigate if it goes to secondary, but I couldn't say for sure. It would make sense that they would use local offices for confirmation of information.
4. If they send you notice that you have failed to meet RO and you don't appeal in the allotted time (30 days I believe), they will automatically revoke your PR. In that case, you would no longer be a PR and returning to Canfor 2 years wouldn't be a possibility anymore.
5. If you don't have that confidence now, I would definitely be concerned IRCC will see it the same way. The guidelines are pretty strict when it comes to working for Canadian companies overseas. If you don't think it will be accepted, I'd be on a plane back to Canada ASAP before your PR card expires. Time spent in Canada and the extent of integration during an appeal can help tip the findings in your favour.
6. If your PR card expires, you will either have to travel to the US and cross by land or apply for a PRTD. No other options there. The fact you hold a PR will be know to both CBSA and CBP (they share all that stuff. I'd worry less about that (you wouldn't be the first PR to cross by land, and you won't be the last) than them finding you are not in compliance. As everyone says, you are a PR (and have the right to enter) until IRCC actually revokes your status.

Best of luck

 

[RT007]

Reply to Buletruck:

So, looking at it pragmatically (not trying to offend you in any way), these are the questions I'd be preparing for if it comes to a secondary review....
Ricky: I fully understand your good intention and the way you asked these questions from a VO’s perspective, it is very much appreciated! Let me answer your questions, and see if I can give you more confidence in my case.

• Are you related to an owner/director of the company? (My gut feeling is if you answer yes, they will assume that, regardless of what the letter says, the position was created for you)

Ricky: Fortunately no, I am not related to the owner, so I hope that they won’t think it’s a favour from the company.

• When you got the job you were outside of Canada I am assuming. So were you hired specifically for the fact you lived in China/HK at the time?

Ricky: I would say I was hired because of the combination of my education background, language capability, familiarity of the company operation and the trusted we built during the time I worked for them in 2008-2009.

I studied industrial engineering, and all my past work experience is related to quality management, so this fit the need of my current job nature. I presume the company was satisfied with my work performance in 2008-2009, and they hired me again because the trust is already there, especially for this role where trust is highly required, as they need to send someone they can trust to report all issues regarding the production and quality at the suppliers production site. And because I am fluent in English and Chinese, so the communication between both parties is fast and effective.

• Are you the only employee in China and where are you based? Is there a country manager or director in country as well? Having a QC guy in China to check finished product seems a little "over the top". Are you in the suppliers facility or does the company maintain an office there?

Ricky: I am the only employee abroad, based in the supplier’s factory, I have an office in the factory. I manage a small team of QC inspectors in the factory (hired by the supplier), and they help to inspect the components, my role is to set product requirement, give direction to the QC, ensure the supplier are producing our stuff in the appropriate priority to meet the shipment timeline, handle quality discrepancy between china’s outgoing and Canada’s incoming quality check, verify rework cost, and work with supplier for improvement. So it’s basically the eye of the company in china.

I believe it is not a job that the company could remotely hire anyone in the china market to perform well, and also not a job that someone in head office can do it remotely with high effectiveness.

• Coming from a manufacturing background, and having spent 10 years working on contracts in the region, why would a company need to have a QC person, on site, when thousands of other companies manage the same sort of thing without having the need to maintain staff in country? (I think this one will depend entirely how savvy the VO is reviewing the application)

Ricky: I think I covered part of the answer to this above, but to further elaborate it, I am not only doing purely product inspections, but other duties where trust is needed, such as verifying the production cost claim by the supplier (since we have an transparent margin approach), verify the cost in case of rework, ensuring our production is not line up in the bottom of the queue, to actively engage with their engineers/ works to attend to the problem of our product timely, so on… Some company would hire 3rd party inspection company to do inspection, but they can only do the inspection and the follow up of problems found in inspection is missing or ineffective.

• If you just bought a house and have no dependants in Canada, why would you be paying taxes in Canada? You have no Canadian income.

Ricky: My pay check is directly deposit to my Canada bank account, so I believe I had to pay tax.


Again, not making a judgement, just trying to look at it through the eyes of a VO who see's these day in and day out. I'd be preparing a strong defence of your position. Who knows, they may take it at face value, but given how long you have been out of Canada (you have spent virtually no time in Canada to this point since landing), I suspect they will dig a bit deeper.

Ricky: Yes, if the employment time doesn’t count, I have almost no time spend in Canada, so I think my case is tougher than most people here…



As for your questions (and other can correct me if I am wrong):

1. They will send you notification your card has gone to secondary review. At that point the renewal times go out the window and it's entirely up to them when it gets processed. If they find you are not in compliance with the RO, they will notify you and give you the opportunity to appeal.
2. See above
3. They may have the local office investigate if it goes to secondary, but I couldn't say for sure. It would make sense that they would use local offices for confirmation of information.
4. If they send you notice that you have failed to meet RO and you don't appeal in the allotted time (30 days I believe), they will automatically revoke your PR. In that case, you would no longer be a PR and returning to Canfor 2 years wouldn't be a possibility anymore.

Ricky: Before they judge that I am failed to meet RO, do you think I will be summon for an interview or something?

1. If you don't have that confidence now, I would definitely be concerned IRCC will see it the same way. The guidelines are pretty strict when it comes to working for Canadian companies overseas. If you don't think it will be accepted, I'd be on a plane back to Canada ASAP before your PR card expires. Time spent in Canada and the extent of integration during an appeal can help tip the findings in your favour.

Ricky: If I tell my company I am having this trouble, I think they would allow me to return to head office (until the case is over at least), but will this help? If not, will quitting the job and comes back to Canada and look for a Canada based job help my situation now? I am thinking, when my case is in second review and I needed to provide more document/ info, at least I can tell them that I am already back to Canada for good to show my intention to stay. I mean, if I knew this would be so much trouble, I wouldn’t accept the job offer in the beginning…

1. If your PR card expires, you will either have to travel to the US and cross by land or apply for a PRTD. No other options there. The fact you hold a PR will be know to both CBSA and CBP (they share all that stuff. I'd worry less about that (you wouldn't be the first PR to cross by land, and you won't be the last) than them finding you are not in compliance. As everyone says, you are a PR (and have the right to enter) until IRCC actually revokes your status.

Ricky: By the way, I found out that the route to abandon the application does not work anymore, as an operational bulletin update was release in Dec 2016:


Quote: "Until new instructions are issued, IRCC agents are advised to ignore all references made to “deemed abandoned” in OB 536. This means that IRCC agents should not deem a PR card application abandoned, or use one of the letters that refer to a “deemed abandoned" application in Appendix A when an applicant outside Canada does not apply for a permanent resident travel document (PRTD), nor appears in Canada within 180 days, as described in OB 536."

http://www.cic.gc.ca/english/resources/manuals/bulletins/2013/ob536.asp


It seems that once I sent in the renew application, the result would either be positive or negative determination, but is there any way to withdraw the application...?

Once again, thanks for your time and effort in looking into my case.



BR


Ricky

 

[Buletruck]

Well, your explanations are clear and concise. I doubt you will have any issue with that and the circumstances of your job seem genuine. You have history with the company and the logic for placing you there seems pretty solid. My gut tells me that it will all come down to whether the position fits the technical description based on IRCC interpretation.

Before they judge that I am failed to meet RO, do you think I will be summon for an interview or something?

Unlikely. If I'm not mistaken you will either get a procedural fairness letter where they ask you to submit further evidence (change their minds) or you will get notification that they have refused your renewal on RO grounds (At that point in time you need to file the appeal). The face to face will come during the appeal process to the best of my knowledge.

If I tell my company I am having this trouble, I think they would allow me to return to head office (until the case is over at least), but will this help? If not, will quitting the job and comes back to Canada and look for a Canada based job help my situation now?

One of the strict requirements is that you have a position to return to in Canada after the contract time overseas is completed. I'd be going back to my employer and getting confirmation this is the case and get it in writing! There have been a few people on here that have run into similar problems for RO and (in my opinion) it's the familiarity and understanding of the requirements and presenting the correct evidence to confirm you meet that requirement that make a successful renewal or appeal (if I can find the topic I'll post it). Returning to Canada can be beneficial, but if you are under appeal the time won't count to RO and you won't be able to sponsor your wife. Personally, I would seriously consider a trip to Canada before the PR card expires if I hadn't heard anything by that time just to avoid the hassle.

It seems that once I sent in the renew application, the result would either be positive or negative determination, but is there any way to withdraw the application...?

I am not sure. I have seen it discussed on here, but I believe it's entirely up to IRCC to decide if they will let you withdraw the application or not.

 

[dpenabill]

What follows are three long posts. Many will prefer to skip these lengthy, in-depth observations. For regular participants here, in particular, most of this is redundant. Albeit this brings together, into a more cohesive whole (I hope), a diversity of previous observations.

There is a short answer for the OP's situation, and that is that there is a substantial risk IRCC will not grant any employee-assigned-abroad credit toward PR RO compliance. In which case the OP's PR status would be in serious jeopardy.

IRCC may be approaching this credit more liberally than we have seen CIC approach it over the last half dozen plus years, or so. It is possible that the OP's PRC application will be routinely processed, a new card issued and delivered within roughly the timeline posted by IRCC.

If in practice, however, IRCC is approaching these cases much like CIC did for the previous half dozen plus years, the OP's PR status is at risk. At this stage there are limited options. There are limited ways to improve the OP's situation. Most of the facts are in the pot, not now amendable.

My short answer comes down to this: time to get a lawyer involved.

And I have the same suggestion for anyone who is relying on qualifying for the employee-assigned-abroad credit toward PR RO compliance.

Get a lawyer and skip the rest of this, including the next two posts.

For those who are not persuaded to go to a lawyer, in this or a similar situation, I offer the following longer explanation:

After reading some articles in the internet, I learned that IRCC is being very strict to applicant who were present in Canada less than 2 years, and they will not just issue the new pr card to me without a very detail investigation on my job placement in China that I used it to fulfil the residency requirement.

In the situation you describe, yes, there is indeed cause for concern.

I am no expert. I am not qualified to give personal advice. But I can offer one bit of general advice: it appears time to see an immigration lawyer, a licensed lawyer not a consultant, and sooner rather than later. So my one bit of advice is to see a lawyer soon.

Generally, as well, you could improve your odds of keeping PR by returning to Canada to STAY as soon as possible. Of course, if IRCC allows you the employee-assigned-abroad credit toward PR RO compliance, that would not be necessary. You would be good to go (meaning good to stay a PR), with a fairly comfortable margin no less. But, frankly, there is a significant if not serious risk that is not how this is going to go, not without a challenge anyway.

Beyond that, and in part to explain why I suggest seeing a lawyer, I can offer some general observations and a few more detailed observations based on what you have outlined about your situation.


Some general observations about employee-assigned-abroad credit toward PR RO compliance:

How these things go can depend on IRCC's general approach in regards to allowing credit toward the PR Residency Obligation for time spent abroad in the employ of a Canadian company. This is not saying anything new, but it warrants restating, with some emphasis, because we do NOT really know how IRCC is currently approaching these cases.

Most of what we know beyond the formal rules themselves is based on years of an increasingly strict and in many respects unfriendly or even outright inimical approach while Harper was PM, especially when Jason Kenney and then Chris Alexander were the Ministers of CIC. Between 2010 and increasingly so by late 2015, it became difficult to see how, in practical terms, a PR could qualify for the assigned-abroad credit without otherwise not needing the credit. That is, the way in which CIC interpreted and applied the rules tended to limit the credit, in practice, to PRs who otherwise were living in Canada anyway for much if not most of the time, clearly employed long-term in a post in Canada and only sent abroad for relatively short-term assignments. Thus, while theoretically, or in the abstract, the credit was available, identifying an actual practical situation in which it would apply was difficult, especially in the way CIC was interpreting and applying the temporarily assigned element.

Even though, to date, attendant the presentation of a still valid PR card, the OP's situation has (apparently) sufficed for the purpose of passing any PoE examination upon returning to Canada, there are dark clouds on the horizon going forward. Without wading too deep into the weeds trying analyze the OP's circumstances, if (IF) IRCC is currently approaching these cases similarly to how CIC has since 2010 (or before, the trend may have started when Diane Finley was Minister of CIC), there is a serious risk of a negative assessment going forward, a significant enough risk to strongly suggest consulting with a reputable, experienced immigration lawyer (not an authorized representative/consultant, let alone any other consultant, but a licensed immigration lawyer) sooner rather than later.

There have been hints that under Trudeau's government there will be more flexibility toward PRs and prospective citizens relative to global mobility, particularly relative to business. We do NOT know whether this has actually invoked some moderation or loosening in how IRCC approaches the employee-assigned-abroad credit toward PR RO compliance.

If it has not, if IRCC is continuing the approach CIC had during the previous half dozen or so years, then again the situation roughly outlined here appears to be one with serious risks. Again, this is despite these circumstances so far facilitating re-entry into Canada without resulting in a 44(1) Report or (it appears) even an admonishment.


The Difference:

The difference is in the extent to which IRCC will probe beneath the surface. It seems very likely that CIC, under Kenney and Alexander, would have gone probing in this situation, with the prospect of a negative outcome looming ominously. I do not know anyone who can definitively say to what extent this may or may not be how IRCC is currently approaching these cases.



Assuming IRCC's current approach is NOT significantly more flexible or friendly than CIC's approach prior to the Liberal government:

I cannot offer so much as a guess about how things might go if IRCC, compared to CIC previously, is currently more liberal or flexible in its approach to the employee-assigned-abroad credit toward PR RO compliance. My impression is that there are some favourable signs in that, it appears, the OP has been able to return to Canada without being so much as admonished about compliance with the PR RO at the PoE, let alone issued a 44(1) Report.

But how CBSA officers at a PoE are approaching returning PRs with a valid PR card does not adequately indicate how IRCC is approaching the employee-assigned-abroad credit generally.

Given the risks, my sense is that it is time to consult with a reputable, experienced, and licensed immigration lawyer, sooner rather than later.

This is because if, in contrast, IRCC continues to approach the employee-assigned-abroad credit as strictly, as skeptically, as unfriendly as CIC did for many years prior to the Trudeau government, there are some red flags and more than a few yellow (caution) flags apparent in the situation as described here, indicating a serious risk the OP's PR status could be in jeopardy.

What follows in a separate post will highlight some of these (emphasis on just some). This is more of a heads-up than an attempt to fully analyze or dissect the situation. This is more of an alert, to identify potential problems, to illuminate risks. I am not an expert. I am not qualified to give personal advice. This is not an effort to provide an analysis of your situation beyond identifying some risks which warrant seeing a lawyer about. Thus it is especially not an effort to illuminate how to deal with these issues. For that, a qualified, reputable immigration lawyer's help would be appropriate.

That is, my only advice is the general advice: see a lawyer. Sooner rather than later.

First, though, I will make a post outlining some observations about the procedure.

 

[dpenabill]

Some observations about procedure:

Unfortunately the procedure in these cases is not all that clear. Various paths are possible.

Foremost, it is possible that IRCC accepts your information on its face. Allows the credit for time employed abroad. Issues you a new PR card. And you would then be good to go (to keep PR), with a fairly comfortable margin no less since this would mean you would be credited as if you were in Canada these last two years.

There is a rather substantial risk it will not go that well. I cannot quantify that risk. I will highlight some of the risks further in another post.

While various tangents and side trips could happen along the way, there are three general paths the processing of your current PR card could take. It warrants cautioning, however, that if you are abroad or go abroad, you could otherwise encounter enforcement of the PR RO any time you seek to re-enter Canada, or if you apply for a PR Travel Document to facilitate boarding a flight to Canada.

The three general paths for processing the PRC application:
-- routine processing, including issuance and delivery of a new card within roughly the timeline indicated online these days (the smooth sailing scenario described above)
-- referral to Secondary Review (which warrants elaboration)
-- promptly issued a request to provide information for a Residency Determination

The third of these would spell an immediate problem, or at the least a serious risk of a problem. Obviously, your case will depend on qualifying for the employee-assigned-abroad credit toward PR RO compliance. My sense is you need a lawyer's assistance with this. There are too many red flags for amateur quarterbacking this game. (See next post for more about the flags.)

We do not see many reports of this, of the promptly pursued formal Residency Determination. Not sure what to make of that. That said, your situation seems to fit a profile for a higher risk of this. This is, in part, because your compliance with the PR RO comes down to being entitled to the employee-assigned-abroad credit, or not.

To be clear, the issue, of course, is PR RO compliance. Given how much time you have been abroad, that comes down to whether you qualify for the employee-assigned-abroad credit. Yes or no will dictate stay or go.

Again, subject to potential various side trips, if IRCC takes your case down this path, you would likely be sent a request for information and documentation so that IRCC can conduct a formal Residency Determination. A negative decision here would likely be a Removal or Departure Order of some sort. I am not certain whether you will be given an opportunity for an in-person interview or hearing first. I think so, but I am not sure. You would have the right to appeal this decision, but losing the appeal would mean you lose PR status.

If, in contrast, you win, you are good to go. To stay a PR that is.


Secondary Review:

Other than routine processing, the processing path we see more reports about is the referral to Secondary Review. There are several lengthy and in-depth topics here devoted to discussions, issues, timelines, procedure, and more, relative to those PRC applications referred for SR.

If you were now living and staying in Canada, and could avoid travel abroad, SR might be an OK thing. Not as good as a routinely processed PRC application resulting in issuance and delivery of a new card, but it would allow time for you to fully settle and show real establishment in Canada, so that by the time there was a formal Residency Determination you would have this weighing in your favour.

My impression is that is not your situation. That you are abroad again, and while you may periodically return to Canada on occasion, you are going to be working abroad for at least a good while longer.

To some extent it appears that CIC and now IRCC tend to throw cases like this into the Secondary Review bog to simmer, in the meantime leaving it up to the PR to either stay settled in Canada or risk being abroad after the PR card expires. For the PR who goes abroad while the application is pending and in SR, and who no longer has a currently valid PR card, in order to return to Canada the PR must either apply for a PR Travel Document or appear at a land-crossing PoE for examination.

An application for a PR TD would invoke a formal Residency Determination. The visa officer would review and assess the information submitted regarding criteria to qualify for the employee-assigned-abroad credit toward PR RO compliance. Visa office decision-making in these cases appears to be more strict and critical than IRCC inland officers. PRs with borderline cases tend to avoid, if at all possible, being in a position they need to make a PR TD application, in large part specifically because how strict visa offices appear to be.

In any event, a PR TD application would mandate a visa office make a Residency Determination, so the issue would be addressed and dealt with. No need to wait for the outcome of SR. The outcome of a PR TD application would be controlling.

Otherwise, if the PR is still carrying a valid PR card (as you will apparently for at least a couple more months), or if the PR travels via the U.S. and arrives at a land crossing PoE to enter Canada, my sense is there is a high risk there will be an overt PR RO compliance interview at the PoE upon next arrival (after the referral to SR has been made). I am not certain, but would bet a lot on it, that once a PRC application is referred for SR there is a FOSS alert in that PR's file, so that the next time the PR is examined at a PoE when returning to Canada, the PoE officers are alerted to at least consider indications of PR RO compliance or the lack thereof. This may or may not lead to a definitive Residency Determination.

In any event, if the PR applies for and is granted a PR TD, the PR's status is safe. If the PR makes this application and is denied a PR TD, the PR has lost PR status unless the PR successfully appeals that decision.

If the PR is examined at a PoE, and found to be in breach of the PR RO, a Departure Order is issued. PR status is lost unless the PR appeals and wins the appeal. If the PoE officer examines the PR, and concludes there are not grounds to issue a Report for a breach of the PR RO, that may or may not be a formal/official decision as to PR RO compliance, but it would be a positive indicator at the least. In the latter scenario, it will be an inland office which determines whether the facts support giving the employee-assigned-abroad credit. If yes, good, good to go (as in to stay a PR). If no, then a Departure Order would most likely be issued.

To make things more complicated, H&C reasons may override the breach of the PR RO. There are reports that PRs have succeeded making a H&C case that in part relies on excusing the failure to comply with the PR RO because the PR believed his employment qualified for the employee-assigned-abroad credit. I do not think this is at all an easy case to win. A lawyer's help could very well make the difference. It's a back-up approach in case the credit will not be allowed.

The H&C case can be made at any of the times a Residency Determination is being made: attendant the application for a PR TD; attendant a PoE examination; or attendant a Residency Determination in the course of processing a PRC application.

 

[dpenabill]

Heads-up risks:

What follows is largely a continuation of the previous posts, these observations being directed more at some (not nearly most let alone all) of the problematic elements in the OP's situation, circumstances suggesting that it would be prudent to consult with a lawyer sooner rather than later.

Again, what follows is based on assuming IRCC is continuing to approach the employee-assigned-abroad credit toward PR RO compliance much as CIC was previously.


Some red flags, some yellow (caution) flags; what lies beneath the surface:

Some red flags are obvious and, my sense is they are serious:
-- the absence of any significant period of employment at a position in Canada immediately (or even recently) prior to being "assigned" to a post abroad
-- the absence of any clear indication the PR-employee has a position in Canada with the employer, let alone an actual plan for the employee to return to such position in Canada at the conclusion of the assignment (indeed, in contrast, the position abroad appears to specifically be a position abroad, and is one which has been "renewed," as if this employee has specifically been contracted for the position abroad)
-- the extent of absence from Canada overall (relatively minimal time spent in Canada)

There are also some yellow (caution) flags which may not be so obvious but lurking ominously between the lines. I do not intend to wade too deeply into these, but a couple warrant highlighting.

In the absence of any red flags, and particularly standing alone, any one of these yellow/caution flags might not be of much import, if any. In conjunction with a red flag, or considering a combination of multiple caution flags, such things tend to take on more significance, with more negative implications potentially looming. It is similar to making a few tiny errors in accounting travel dates. Standing alone these are no big deal at all. We all make mistakes (especially those who think they don't). But in conjunction with other circumstances triggering concern and heightened scrutiny, the little things tend to get more attention, and that attention tends to lean negative.

Some of these here are related to the nature and extent of ties in Canada. Others are related to what the employer's letter states and just as importantly what it does not state.


Ties in Canada:

Some of the yellow (caution) flags are related to the kind of ties that have been established in Canada. On one hand, these are minimal ties that the PR probably needs to establish to have much if any chance of keeping PR status: filing and paying taxes, and having a residence for example. But these illustrate the multi-dimensional nature of how various factors can influence an IRCC assessment.

These particular ties (paying taxes and having a residence in Canada) offer a good example of factors which are predominantly of one sort (these being positive), but potentially subject to some contrary implications (here, potentially negative implications) as well.

Many participants in the forum tend to describe factors as one-dimensional or unidirectional, almost as if there is a defined score attached to a particular fact (say, for example, owning home in Canada worth x positive points). This is especially so in regards to factors influencing H&C assessments, regarding which it is often stated that this or that (attending school abroad or staying at a job abroad for example) is a negative factor, or at least "is not considered" as an H&C factor. That is misleading and quite often outright wrong. The same fact can have negative or positive implications, depending on context and its relationship to other factors, with how negative or positive varying widely.

In the context here, having a place of residence and paying taxes in Canada are facts tending to be solidly positive factors. And their absence would be a salient negative factor.

But, in the context of what has been described here and depending on the extent to which IRCC probes beneath the surface, if other red flags triggered more skeptical scrutiny these ties may also appear to be artificial, more or less orchestrated to give the appearance of ties rather than being genuine ties. Depending on the officer's perceptions, this could merely negate much or most of the positive weight these ordinarily carry, or could actually lead the officer to be overtly more suspicious or at least doubtful of the PR's credibility.

There are undoubtedly plenty of ways to explain things positively, including the obtaining of a residence as part of the plan to return to settle in Canada permanently. Which, if (IF) one gets an opportunity to make that explanation before a decision-maker at IRCC has jumped to conclusions, should indeed bolster the positive weight of this factor, this tie to Canada. That's a big if. That's an if typically overlooked. Many if not most assuming their explanation will obviate potential negative implications, fail to recognize that a stranger-bureaucrat will likely review and take stock of the facts, and reach some conclusions (tentative perhaps but nonetheless in the direction the decision-maker is leaning) before the PR has an opportunity to offer an explanation. And even when the opportunity comes, such explanations may tend to come across as self-serving. (Sometimes the Federal Court has admonished CIC/IRCC decision-makers for giving too much negative weight for what they perceive to be self-serving explanations, which illustrates how much this happens and what kind of influence it often has.)

Again, I am going into this depth regarding this particular aspect more to illustrate how multi-dimensional the implications are, and the hurdles a PR faces if and when an officer reviewing the facts perceives a negative implication from this or that fact.

Note, for example, if the examining officer does not perceive a yellow or red flag regarding this, so to say, the having a residence factor will be a wholly positive one. (Although even then, how much so can and does vary.)

In other words, a lot depends on how the case as a whole looks and whether IRCC has noticed reasons to look more closely and deeply, and potentially critically.

No concerns, no suspicions, positive factors checked, smooth sailing to a positive outcome.

Something raises a question or concern, something suggests cause for suspicion, non-routine and elevated scrutiny is applied, then any aspect and every aspect of the case can be examined in a very different, far more critical light.

This case has risks of elevated scrutiny triggers all over it. The minimal amount of time spent in Canada looming as perhaps the most salient one.


Yellow/caution flags raised by the letter:

The superficiality of the letter, which primarily states conclusions rather than facts, raises at least a yellow flag. This includes, in particular --
-- lack of specifics in the letter
-- blatantly gratuitous conclusions in the letter, especially the statement that neither the business nor the position is "created to meet residency obligation of the employee"

The lack of specifics is relatively obvious. Investigators in any context depend on specific facts. They will reach their own conclusions based on the facts. A letter like this which offers conclusions in language similar to the agency's published version of the rules may work fine when offering an explanation to a CBSA officer at a PoE, but risks triggering elevated scrutiny in a PR TD application or a Residency Determination attendant inland processing (such as for a PR card renewal application).

The more salient example in this letter is the statement that neither the business nor the position is "created to meet residency obligation of the employee." Again, this is a conclusion. An officer at IRCC is more interested in the particular facts and deciding for herself or himself whether those facts indicate the business or position was created to meet a PR's RO. Moreover, this effectively broadcasts that this is a concern, that the employer and/or employee is concerned the assignment might be perceived as such. It is kind of like being stopped for speeding and blurting out, unsolicited, "and there's no [contraband] in the trunk for you to be worried about officer." No crystal ball necessary to foresee where that is prone to go.

Anyone much familiar with the IAD decisions regarding these issues could fairly easily offer suggestions which would improve the appearance of things. But what really matters are the actual facts. Most of those are fixed, history, not amendable. And among those, key facts would include those showing (or not showing) the PR was employed in a position in Canada before being assigned to a temporary assignment abroad, with every intention that the employee would be returning to his or her position in Canada.

At this stage, the OP could really use the assistance of a qualified lawyer. Otherwise it is gambling. Things could work out. But there is a risk things might not work out.

Moving to and settling permanently in Canada, soon, might mitigate the damage and augment H&C reasons for retaining PR status. This would not be necessary if IRCC allows the employee-assigned-abroad credit toward PR RO compliance. Whether to totally gamble on the credit in this situation is a tough call. Again, a qualified lawyer could help the OP make this call. And, by the way, help formulate an alternative H&C case as a back-up plan.

 

[Mark1359]

May I know if finally this PR holder could renew his PR with his job position out side of Canada?

 

[canuck78]

1. I'll give a more brief opinion. You did not work for the employer before being posted to HK or China. You did work for the company briefly 10 years ago but that employment was not really related so your employment by a Canadian entity abroad won't count.