Does PR processing time count towards RO?
- Thread starter dabas
- Start date
Yes, if you win the appeal.dabas said:Does the processing time whilst waiting for PR renewal for purposes of secondary review and appeal if necessary count towards PR Residency Obligation?
There is a huge difference between the time an application for a PR card is pending and the time an appeal is pending.
If there is an appeal pending for either a PR TD denial or the issuance of a Removal Order, time spent in Canada while that is pending does NOT count toward compliance with the PR Residency Obligation unless the PR wins that appeal.
Generally time spent in Canada during the time period a PR card application is in process will count toward the PR RO . . . at least up to the date there is a formal residency determination.
But again, if there is 44(1) Report, Removal Order, or PR TD denial then time after the date of that event does not count toward the PR RO unless the PR appeals and wins the appeal (and if the PR happens to have a PR card application concurrently in process, that is not relevant).
If there is an appeal pending for either a PR TD denial or the issuance of a Removal Order, time spent in Canada while that is pending does NOT count toward compliance with the PR Residency Obligation unless the PR wins that appeal.
Generally time spent in Canada during the time period a PR card application is in process will count toward the PR RO . . . at least up to the date there is a formal residency determination.
But again, if there is 44(1) Report, Removal Order, or PR TD denial then time after the date of that event does not count toward the PR RO unless the PR appeals and wins the appeal (and if the PR happens to have a PR card application concurrently in process, that is not relevant).
@Depenabill
Thanks for responding to my question, to put the response in context, let us say the PR applies today with 630 days (though did not declare shortage below 730 in the application). CIC process the application after 100 days, so by the time the PR turn comes, s/he is definitely more than 730, will CIC decides based on current physical presence 730+ or will CIC make determination based on the physical presence when the PR filed the renewal application when s/he was @630?
Thanks for responding to my question, to put the response in context, let us say the PR applies today with 630 days (though did not declare shortage below 730 in the application). CIC process the application after 100 days, so by the time the PR turn comes, s/he is definitely more than 730, will CIC decides based on current physical presence 730+ or will CIC make determination based on the physical presence when the PR filed the renewal application when s/he was @630?
I have some concerns about the nature of these queries. That noted . . .
Your queries have been all over the map, including some relative to citizenship processing. I do not have a grasp on what issues you might really have or are concerned about. As noted, I have some concerns about the nature or motive for these queries.
There is a simple outline of the Residency Obligation for Permanent Residents in the guide for applying for a new or replacement card; this is in Appendix A and is indeed titled "Residency obligation."
See http://www.cic.gc.ca/english/information/applications/guides/5445ETOC.asp#appendixA
For more detailed information about the PR Residency Obligation and IRCC's approach to enforcement, see Operational Manual ENF 23 Enforcement, section 7 (beginning on pabe 18); see http://www.cic.gc.ca/english/resources/manuals/enf/enf23-eng.pdf
Also see ENF 27 "Permanent resident card" at http://www.cic.gc.ca/english/resources/manuals/enf/enf27-eng.pdf
Other ENF manuals contain relevant information as well, includng ENF 1 Inadmissibility; ENF 2 Evaluating inadmissibility; ENF 5 Writing 44(1) Reports; and ENF 6 Review of Reports under A44(1).
While not directly relevant here, some information in the Overseas Processing operational manual OP 10 Permanent Residency Status Determination can also be instructive.
Beyond that, not all situations in which compliance with the PR RO can be an issue have the same direct consequences. For example: Applying for a PR card when not eligible (when in breach of the PR RO for example) does not have the same direct consequence as applying for a PR Travel Document when not in compliance. A PR card application can be denied without necessarily terminating an individual's PR status. If an application for a PR TD is denied, that will terminate PR status unless it is appealed and the appeal is won.
Of course there is a risk that making a PR card application while in breach will result in IRCC conducting a formal residency determination, and if that happens as to a date the PR continues to be in breach, then a Report and Removal Order are likely, and PR status will be lost unless there is a successful appeal. The more typical risk is that there will be an alert in FOSS, pursuant to which it is more likely compliance with the PR RO will be more or less strictly examined the next time this individual appears at a PoE seeking entry into Canada.
Reminder: compliance with the PR RO is based on the date of the residency examination. For purposes of an appeal from a Removal Order, that is the date of the 44(1) Report. For a PR TD that is the date of application for the PR TD. For a PR card that is the date of application. But again, just because a PR was not eligible for a new PR card on the date the application for the card was made, due to being in breach of the PR RO, does not necessarily result in the loss of PR status.
I am no expert and I am not qualified to give personal advice, and generally will not, hypothetically or otherwise.dabas said:@Depenabill
Thanks for responding to my question, to put the response in context, let us say the PR applies today with 630 days (though did not declare shortage below 730 in the application). CIC process the application after 100 days, so by the time the PR turn comes, s/he is definitely more than 730, will CIC decides based on current physical presence 730+ or will CIC make determination based on the physical presence when the PR filed the renewal application when s/he was @630?
Your queries have been all over the map, including some relative to citizenship processing. I do not have a grasp on what issues you might really have or are concerned about. As noted, I have some concerns about the nature or motive for these queries.
There is a simple outline of the Residency Obligation for Permanent Residents in the guide for applying for a new or replacement card; this is in Appendix A and is indeed titled "Residency obligation."
See http://www.cic.gc.ca/english/information/applications/guides/5445ETOC.asp#appendixA
For more detailed information about the PR Residency Obligation and IRCC's approach to enforcement, see Operational Manual ENF 23 Enforcement, section 7 (beginning on pabe 18); see http://www.cic.gc.ca/english/resources/manuals/enf/enf23-eng.pdf
Also see ENF 27 "Permanent resident card" at http://www.cic.gc.ca/english/resources/manuals/enf/enf27-eng.pdf
Other ENF manuals contain relevant information as well, includng ENF 1 Inadmissibility; ENF 2 Evaluating inadmissibility; ENF 5 Writing 44(1) Reports; and ENF 6 Review of Reports under A44(1).
While not directly relevant here, some information in the Overseas Processing operational manual OP 10 Permanent Residency Status Determination can also be instructive.
Beyond that, not all situations in which compliance with the PR RO can be an issue have the same direct consequences. For example: Applying for a PR card when not eligible (when in breach of the PR RO for example) does not have the same direct consequence as applying for a PR Travel Document when not in compliance. A PR card application can be denied without necessarily terminating an individual's PR status. If an application for a PR TD is denied, that will terminate PR status unless it is appealed and the appeal is won.
Of course there is a risk that making a PR card application while in breach will result in IRCC conducting a formal residency determination, and if that happens as to a date the PR continues to be in breach, then a Report and Removal Order are likely, and PR status will be lost unless there is a successful appeal. The more typical risk is that there will be an alert in FOSS, pursuant to which it is more likely compliance with the PR RO will be more or less strictly examined the next time this individual appears at a PoE seeking entry into Canada.
Reminder: compliance with the PR RO is based on the date of the residency examination. For purposes of an appeal from a Removal Order, that is the date of the 44(1) Report. For a PR TD that is the date of application for the PR TD. For a PR card that is the date of application. But again, just because a PR was not eligible for a new PR card on the date the application for the card was made, due to being in breach of the PR RO, does not necessarily result in the loss of PR status.
@Depenabill,
Thanks for your kind response. I made an application for citizenship calculating months I worked overseas for an incorporated Canadian employer which I was later told does not count towards citizenship. My application before June 2015 was RQed and I am looking at my options as to withdraw or wait and get it refused.
I was advised in the forum to focus on my PR status and here I am eligible if I count my work for Canadian employer overseas but based on your post on an appeal that was dismissed by federal gov, I realise that being successful in counting overseas work depends on the circumstances and interpretation of the CO and CJ. So, I am looking at risk-free options of strict count of physical presence with my strong ties to Canada (property, education, profession and assets). When I say 630 days that is physical presence and the rest to rely on overseas working count as one option. I do not have PR card application yet and I am thinking when, what and how. My husband also is in difficult situation and will be loosing his PR status because he choose to go for 100% sponsorship in Australia and it is important for me to retain my status so I can sponsor him when he is done..
I thought this is an informal community to share my mind and consider others experience and knowledge in the process of making informed decisions and avoid making fatal errors such as counting overseas work in my citizenship application.
Thanks for your assistance ..
Thanks for your kind response. I made an application for citizenship calculating months I worked overseas for an incorporated Canadian employer which I was later told does not count towards citizenship. My application before June 2015 was RQed and I am looking at my options as to withdraw or wait and get it refused.
I was advised in the forum to focus on my PR status and here I am eligible if I count my work for Canadian employer overseas but based on your post on an appeal that was dismissed by federal gov, I realise that being successful in counting overseas work depends on the circumstances and interpretation of the CO and CJ. So, I am looking at risk-free options of strict count of physical presence with my strong ties to Canada (property, education, profession and assets). When I say 630 days that is physical presence and the rest to rely on overseas working count as one option. I do not have PR card application yet and I am thinking when, what and how. My husband also is in difficult situation and will be loosing his PR status because he choose to go for 100% sponsorship in Australia and it is important for me to retain my status so I can sponsor him when he is done..
I thought this is an informal community to share my mind and consider others experience and knowledge in the process of making informed decisions and avoid making fatal errors such as counting overseas work in my citizenship application.
Thanks for your assistance ..
This is indeed an informal online community.dabas said:@Depenabill,
Thanks for your kind response. I made an application for citizenship calculating months I worked overseas for an incorporated Canadian employer which I was later told does not count towards citizenship. My application before June 2015 was RQed and I am looking at my options as to withdraw or wait and get it refused.
I was advised in the forum to focus on my PR status and here I am eligible if I count my work for Canadian employer overseas but based on your post on an appeal that was dismissed by federal gov, I realise that being successful in counting overseas work depends on the circumstances and interpretation of the CO and CJ. So, I am looking at risk-free options of strict count of physical presence with my strong ties to Canada (property, education, profession and assets). When I say 630 days that is physical presence and the rest to rely on overseas working count as one option. I do not have PR card application yet and I am thinking when, what and how. My husband also is in difficult situation and will be loosing his PR status because he choose to go for 100% sponsorship in Australia and it is important for me to retain my status so I can sponsor him when he is done..
I thought this is an informal community to share my mind and consider others experience and knowledge in the process of making informed decisions and avoid making fatal errors such as counting overseas work in my citizenship application.
Thanks for your assistance ..
You are correct to focus on being physically present in Canada for at least 730 days within the previous five years as the most Risk-Free option. But of course there is still the matter of actually proving compliance with the PR Residency Obligation, so even that is not entirely risk-free.
Unfortunately, even if you wait until you pass the 730 days within five years in Canada threshold, that will not guarantee the application for a new PR card will be routinely processed. Extensive absences raise questions. The burden of proof is on the PR. In another topic this morning I referenced and linked a number of PR RO cases, cases in which Removal Orders had been issued and the PR appealed. Some of those were PRs who claimed actual presence in Canada for more than the 730 days within the previous five years. Additionally, this forum has a significant number of participants whose application for a new PR card is bogged down in lengthy delays. This is not to discourage or frighten, but to alert you that the way forward can be a bit bumpy, and mostly to help you be aware of and prepared for having to go through the process of affirmatively establishing when you were in Canada and what your ties in Canada are.
Strong ties in Canada are important if and when there are questions about compliance with the PR RO. But strong ties abroad are also important (in a negative way of course), like a spouse living abroad. It is common for many to focus on what they perceive to be the positive factors in their situation and overlook the weight and impact of potential negatives. IRCC and CBSA tend to identify and give a lot of weight to the negatives, so it is a mistake to underestimate their significance.
A prime example of the latter is indeed the situation in which a PR relies on the fact a business is incorporated in Canada as sufficient to count time working abroad (for that business) toward Canadian residency requirements. As you have learned, there is no such credit toward the citizenship requirements. As apparently you apprehend, whether there is such a credit toward the PR RO is more complicated than just where the employer is incorporated.
Caution: there has been a lot of bad advice given to PRs by less than competent, oft times not so scrupulous so-called consultants, many if not most of whom are not authorized to be consultants. This has been particularly so relative to ways for PRs to meet the PR RO while working-abroad-for-Canadian-employers. I have no idea whether you have relied on or used a consultant at all.
Further down in this post I will include more in-depth observations about this; see below.
In the meantime, be very cautious about relying on credit for time working abroad for a Canadian business unless the circumstances in which you came to be employed abroad for a Canadian business fit all of the following:
-- the job abroad arose while you were employed by this business, at a position in Canada and actually working in Canada, and
-- the plan included you returning to Canada to continue working for the business in Canada, and
-- it was the employer who decided to assign you to a temporary position abroad, and
-- the business is not run by you, a close family member, or close friends
All the above are not absolutely necessary for the credit, but you should be wary, very cautious, about whether the credit will be available unless all of the above describe the employment abroad.
If the employment you had fits all of the above, and especially if indeed you were employed by this business before being assigned abroad, and you continued to work for the business in Canada after returning to Canada, there should be good odds you get the credit. Otherwise, if your circumstances are close to what is described above, it may be worth your while to obtain a formal, paid-for consultation with a licensed, experienced and reputable immigration lawyer, to specifically go over the specific circumstances of your employment abroad to assess whether it is likely IRCC will allow credit for that time. Not a consultant, but a lawyer, a lawyer who is specifically engaged in immigration law. And to get the best opinion for a reasonable cost, make and keep the inquiry specifically focused on particular circumstances of your employment abroad. After all, if indeed you will be credited for this time, that makes your situation a lot, lot easier. And accelerates the time line for making the application to replace the PR card.
Caution IF, if you have used a consultant:
The following is a caution IF if you have relied on or used a consultant in regards to your employment abroad:
As I noted above, there has been a lot of bad advice given to PRs by less than competent, oft times not so scrupulous so-called consultants, many if not most of whom are not authorized to be consultants. This has been particularly so relative to ways for PRs to meet the PR RO while working-abroad-for-Canadian-employers. I have no idea whether you have relied on or used a consultant at all. I go into this because it is so common, because there are so many PRs who have been misled by incompetent, or bad, even crooked consultants, regarding the credit toward the PR RO for those who are employed abroad by a Canadian business.
Thus, if you have relied on or used a consultant specifically in regards to the matter of working abroad for a Canadian employer, then:
-- if this consultant is not an authorized consultant, consider any and all advice from this consultant to be false unless and until firmly established otherwise
-- even if an authorized consultant, if the consultant in any way arranged or help to arrange the business in Canada, or advised you about how to do this, be very skeptical unless and until you can verify the validity of the information relied upon
To find out more about using a representative or consultant, see:
-- Find out if your representative is authorized
at http://www.cic.gc.ca/english/information/representative/verify-rep.asp
-- tips for choosing a representative at http://www.cic.gc.ca/english/information/representative/rep-choose.asp
@Depenabill
You are right in that the trouble I am in now is because I sought advice from Consultants and met other PR abroad who used to take the PR RO and citizenship for granted.
My working for Canadian business abroad though strong will not be straight forward and will be risky because on my return to Canada I did not work for them because they wanted me to remain overseas. This is where my case may fall apart.
The strength of my case is that I did not join my husband to remain in Canada and I refused to work any more for my employer abroad to be back in Canada. I have no issues living in Canada to be in compliance with RO irrespective of relying on my employer. I have strong ties to Canada even before becoming PR like education, bank accounts and credit card.
My immediate trouble is I have to travel abroad to dispatch my personal effects from Euroupe when I left my employer. Many of the items I declared on my first custom clearance on landing. My plan is to travel and arrange the shipment and come back before lapse of my PR. My fear is during clearance with CBSA, can they report me when I am in Canada clearing some of my stuff that I did not ship after landing because it would read like I was living abroad?
You are right in that the trouble I am in now is because I sought advice from Consultants and met other PR abroad who used to take the PR RO and citizenship for granted.
My working for Canadian business abroad though strong will not be straight forward and will be risky because on my return to Canada I did not work for them because they wanted me to remain overseas. This is where my case may fall apart.
The strength of my case is that I did not join my husband to remain in Canada and I refused to work any more for my employer abroad to be back in Canada. I have no issues living in Canada to be in compliance with RO irrespective of relying on my employer. I have strong ties to Canada even before becoming PR like education, bank accounts and credit card.
My immediate trouble is I have to travel abroad to dispatch my personal effects from Euroupe when I left my employer. Many of the items I declared on my first custom clearance on landing. My plan is to travel and arrange the shipment and come back before lapse of my PR. My fear is during clearance with CBSA, can they report me when I am in Canada clearing some of my stuff that I did not ship after landing because it would read like I was living abroad?
Part of what has happened is that until the last few years, enforcement of a PR's obligations was at best haphazard, and indeed in many respects so lax many were able to easily maneuver around it. More recently Canada has more aggressively and strictly enforced the PR RO. Among cases I referenced yesterday morning was one in which a PR returned to Canada more than 18 months prior to his PR card expiring, more than 18 months prior to the fifth anniversary of his landing, but had indeed been outside Canada more than 1095 days since landing and was reported upon entering Canada. He eventually won an appeal based on H&C reasons, but for someone who has a spouse living abroad that might not be their outcome.dabas said:You are right in that the trouble I am in now is because I sought advice from Consultants and met other PR abroad who used to take the PR RO and citizenship for granted.
My working for Canadian business abroad though strong will not be straight forward and will be risky because on my return to Canada I did not work for them because they wanted me to remain overseas. This is where my case may fall apart.
The strength of my case is that I did not join my husband to remain in Canada and I refused to work any more for my employer abroad to be back in Canada. I have no issues living in Canada to be in compliance with RO irrespective of relying on my employer. I have strong ties to Canada even before becoming PR like education, bank accounts and credit card.
My immediate trouble is I have to travel abroad to dispatch my personal effects from Euroupe when I left my employer. Many of the items I declared on my first custom clearance on landing. My plan is to travel and arrange the shipment and come back before lapse of my PR. My fear is during clearance with CBSA, can they report me when I am in Canada clearing some of my stuff that I did not ship after landing because it would read like I was living abroad?
Traveling abroad now, in breach of the PR RO, is risky. No way around that. How much risk I doubt any of us here can reliably predict. I cannot guess what the risk is.
Until I recently saw how many cases there have been in which PRs with valid PR cards were reported at the PoE, in the last several years, my sense was the officers at the PoE were still being very lenient with PRs who still had a valid PR card and who were within the first five years since landing. I think there is probably still quite a bit of leniency, but less so than in the past, and maybe a lot less. It is so hard to predict these things: it is not as if IRCC and CBSA announce how much leeway they will allow.
Part of the problem in documenting entitlement to the credit for being employed abroad by a Canadian business is getting documentation from the business describing the employment and assignment. It appears this may be difficult in your situation.
I cannot give any advice. Indeed I am not qualified to give advice. But I can suggest that if retaining PR status is important to you, if there is any way to stay in Canada until you have been here 730+ days and apply for and obtain a new PR card, that is the safest course to take. Looks like you are in a tough spot.