@Adam_M
Overstating it some: If a PR needs credit for time working abroad to comply with the Residency Obligation, odds are high it will be difficult for the employment abroad to qualify for the credit.
This is obviously not the rule. It is clearly not always true. But it captures the gist of how difficult it can be, and often is, to comply with the RO relying on the working abroad for a Canadian business credit. It illustrates the strictness with which this exception is interpreted and applied.
Which is not to assert the credit is arbitrarily denied. Many PRs do qualify for and rely on this credit. The majority of such PRs, however,
are well-settled IN Canada, and their primary home base is in Canada, even though they have employment which sends them on assignments abroad, the frequency and duration of which means they are outside Canada more than 1095 days in a five year period.
In contrast, PRs who are primarily living abroad and attempting to keep PR status by qualifying for this credit are rather likely to be disappointed.
Which brings me to the point of this rather long response:
if a PR is attempting to screen prospective employers and jobs in search of employment which will facilitate living abroad and keeping PR status, and the PR really needs the credit for time working abroad to keep PR status, BEWARE, that is NOT likely a viable plan.
That, at best, is a risky plan. This is NOT a credit to seek out.
In particular . . .
PRs Prospectively Evaluating Employment Abroad: I cannot emphasize enough that if a PR is considering employment abroad which might result in NOT meeting the RO based on days physically present in Canada, THAT IS A LAWYER-CONSULTATION MATTER. No doubt about it. And even with the assistance of a lawyer, a great deal of CAUTION is warranted. The rules and their interpretation aside, this is NOT an easy credit to qualify for if the PR is otherwise in a situation where the PR needs the credit. EXERCISE A LOT of CAUTION before taking work abroad if doing so means being abroad more than three years within the last five.
I do not expect anyone to take my word for this. I am, after all, NO expert. I am NOT an authority.
So, in addition to looking at the dozen plus OFFICIAL sources I cite and link in the topic linked in the quote of my post above, from nearly a year ago, to help anyone considering such a plan better understand the weakness, if not utter fallacy, of such a scheme, I offer the . . .
LONG EXPLANATION:
If the point of this lengthy explanation is not relevant to your situation,
@Adam_M, it should nonetheless illuminate more about the credit for your consideration.
2, It's better to get hired within Canada and then sent aboard in a temporary assignment, and there's proof that you will continue working for the employer in Canada after the assignment.
As others have noted, a key element is that the work abroad is pursuant to a temporary assignment.
You frame the criteria evidencing the temporary nature of the assignment in terms that it is "
better to . . . "
No. It is not merely "
better," but in effect mandatory. To qualify for the credit the work abroad
MUST be pursuant to a
*TEMPORARY* *ASSIGNMENT.* And just saying it is temporary, even if the employer also states this, will not fly UNLESS the nature and circumstances and particular terms of employment are in fact such that it is in fact an
*ASSIGNMENT* abroad that is for a
*TEMPORARY* duration.
The evidentiary factors themselves, related to establishing that the work abroad is pursuant to a temporary assignment, are not absolute . . . so, for example, there are cases in which a PR has gotten the credit even though the PR was not hired in Canada and then sent abroad. But it is safe to say the latter is unusual. Probably RARE. AND, it is important to recognize, the circumstances are evaluated with a focus on determining the actual nature of the employment, whether employment did indeed consist of a
*TEMPORARY* *ASSIGNMENT* abroad, not whether it fits a definitive list of criteria or label. (I have placed separate asterisks around both terms, "temporary," and "assignment," because both are individually important, distinct elements in determining if the particular employment qualifies.)
This is NOT what the statutory provision itself says (that is, subsection
28(2)(a)(iii) IRPA). There is no mention or reference to a "temporary assignment" in the statute. This is about how the statute is interpreted and applied.
Moreover, there is no mention or reference to "temporary" in the applicable regulation, which is
Regulation 61 IRPA Regulations.
Leading to . . .
1, It's clearly stated that the business can't not created primarily to let you meet your residency obligation (self owned).
I have a question about the employer, does it have to be a reputable organizations(such us RBC, TD bank) in real cases?
The statute merely states that a PR "
outside Canada employed on a full-time basis by a Canadian business" gets credit toward compliance with the Residency Obligation.
It is in the manner in which this provision is interpreted and applied that the specific criteria arises.
Thus, for example, and in particular, it is what "
a Canadian business" is interpreted to mean that excludes a business "
that serves primarily to allow a permanent resident to comply with their residency obligation while residing outside Canada." This is a quote from Regulation 61(2). Prior to becoming IRCC, in adopting operational guidelines CIC described this slightly differently, in its Operational Manuals; both the Operational Manuals governing PR applications for a PR TD, in OP10 "Permanent Residency Status," cited by
@scylla, and in ENF-23 "Loss of Permanent Residency Status. Both refer to excluding businesses that "
have been created primarily to allow a permanent resident to satisfy their residency obligation while residing outside Canada."
I do not mean to overly parse or put too much emphasis on the difference between a business "
created" as such, or which "
serves" as such. But the use of such terms in effectively writing into the statute a fairly strict limitation of what qualifies for the credit illustrates this is NOT technical criteria. It illustrates that the exception is interpreted and applied in a rather narrow manner generally denying the credit in circumstances where it appears the underlying impetus (underlying the employment) is to allow RO credit while the PR is residing abroad.
It warrants much emphasis that how this credit is interpreted and applied does NOT depend on the labels used. Sure, some labels may generate concerns. To what extent a contract or directive stating the PR was "
transferred" abroad might trigger questions about whether the PR was "
assigned" abroad should (according to the way the rule is regularly applied, as evidenced most in IAD decisions) be mostly resolved by the extent to which it is clear (or not) it is TEMPORARY. That is, the label "
transferred" will not preclude the employment qualifying for the credit so long as it is clearly temporary, while in contrast if the paperwork uses the label "
assigned" that will not necessarily qualify unless the nature and circumstances illustrate it is in fact a TEMPORARY posting abroad, even if the paperwork also labels the employment as a "
temporary assignment" (though such a label in the paperwork would ordinarily bolster the case, so long as the actual parameters of employment are consistent with that).
The above is just ONE SLICE of analysis in how this credit is interpreted and applied.
BOTTOM-LINE, another somewhat overstatement: if the situation is one in which it is the PR wanting the work abroad (the PR looking for or otherwise choosing work that will allow the PR to reside abroad), rather than the PR being, in effect, compelled to work abroad by the employer, to meet the employer's needs, it readily appears the RISK is high that IRCC will look for, quite likely find, and apply a reason to NOT allow the credit. Unlike the
accompanying-citizen-spouse credit, which has been broadly allowed in a way that gives the credit to PRs living abroad long-term (with their Canadian citizen spouse), it is obvious that this credit is interpreted to NOT cover PRs residing abroad for extended periods of time. Again, this is not the rule, as such. Again, this is overstating it some. But unless the PR already has a strong-tie to settlement in Canada, and perhaps even then,
much CAUTION should be exercised in relying on this credit . . . meaning, usually, it is best to at least consult with a competent, reputable LAWYER (not a consultant; and not the employer's lawyer, and not a lawyer chosen to figure out how to make the credit apply).
