I'm in a Catch-22 Situation

[Metta0184]

My mom and I landed in 1993 when I was a young child.
My mom and I went back to the United States shortly after because of employment reasons. I was still a young child.
I grew into an adult and pursued a career as an airline pilot in the United States at the age of 16 and land my first airline job as a pilot in 2007 and I'm still currently employed with the same U.S. airline till this present day and I'm based in the Columbus, Ohio.
My mom left the United States and came back to Canada in 2009 on H&C grounds across the land border at the Buffalo/Ontario check point.
I also came back to Canada in 2009 with my mom across the border and began to pursued a career with an Canadian airline as a pilot because my grandfather passed away leaving my grandmother by herself and now my mother and I take care of her in Toronto.
All of our family lives in Canada and are all Canadian citizens.
I have a Transport Canadian Airline Transport Pilots License and a Industry Canada Radio Operator Certificate, Permanent Resident status, but no PR card.
I've file taxes every year since 2009 and paid what I owned to Revenue Canada and continue to do so.
I have a job offer with a Canadian airline as a captain that requires Citizenship or PR status with a PR Card because the job requires international travel. I will be a pilot for this company.

Because of my job in the United States as an airline pilot, I'm required and obligated to my current employer and I have to commute back and forth between Canada and the United States on my days off. Because of my situation, it is impossible to meet the 730 day physical residency requirement in the last 5 year because I work for a U.S. airline still and it requires me to be out of Canada for more than half the month. I can not quit my job as a pilot there until I get a job in Canada as a pilot which I did, but can't start until I receive my PR card. I can't quit my job and stay in Canada for two straight years because that would end my career as an airline pilot because no one will hire me as an airline pilot with two years of not flying. It's career suicide for me both here in Canada and the United States to quit flying for two year because my pilot licenses will run out of currency and no employer will even consider me if they saw a two year gap on my resume. Aviation is my field of education, income, and career.

My PR card application is still under review at the local office in Toronto for residency requirements.

I've been dealing with this for a long time and I don't know what to do to resolve this. My job is high profile and is my current source of income to support my mother and I. I've explained my situation to an Immigration Lawyer here in Toronto and have acquired his help. The lawyer and I submitted a lot of information showing my Canadian bank accounts, LOA from Revenue Canada, copies of my Canadian Pilot license, copies of my relatives citizen cards, etc... to show that I'm rooted in Canada.

What else can I do to resolve this? I need some honest advise so I can re-strategies .

Thanks in advance!!

 

[computergeek]

If you've been residing in Canada since 2009 and you were not under a removal order, there is no question that you have met the residency obligation and you remain a permanent resident of Canada. I have absolutely no idea why they would delay your application - you either meet the 730 day requirement, or you don't meet the 730 day requirement.

Have you contacted the Member of Parliament representing the district in which you reside? If not, I'd suggest doing so - explain to them the situation. You might also ask your attorney about going to Federal Court to request Mandamus. In my experience, once a Federal Court action is filed requesting Mandamus they (Justice Canada) make CIC move quickly to resolve the issue so they don't have to defend CIC.

Have you requested your GCMS case notes? That should ALSO tell you where they are with respect to reviewing your PR card renewal application. Since you are in Canada, you can request that without charge - it's done online these days and you get the response in 30 days.

One of the most amazing cases I've read in the past year was one in which CIC dragged out the delivery of a new PR Card to someone. This person was outside Canada and had in fact reached a point where he was no longer in compliance with the residency obligation because he couldn't return back to Canada due to the problems with the PR card. The Federal Court slapped CIC quite hard on this one - ordering them to deliver his PR Card to him outside Canada.

Good luck!

 

[scylla]

If you've been residing in Canada since 2009 and you were not under a removal order, there is no question that you have met the residency obligation and you remain a permanent resident of Canada. I have absolutely no idea why they would delay your application - you either meet the 730 day requirement, or you don't meet the 730 day requirement.

OP does not meet the residency obligation. OP spends more than half of every month outside of Canada due to the US airline job. In OP's own words: "Because of my situation, it is impossible to meet the 730 day physical residency requirement in the last 5 year because I work for a U.S. airline still and it requires me to be out of Canada for more than half the month."

 

[Leon]

OP does not meet the residency obligation. OP spends more than half of every month outside of Canada due to the US airline job. In OP's own words: "Because of my situation, it is impossible to meet the 730 day physical residency requirement in the last 5 year because I work for a U.S. airline still and it requires me to be out of Canada for more than half the month."

Even if someone was outside of Canada because of their job for more than half the month, they could still meet the residency requirement. 730 days spread over 5 years and 12 months a year is 12.17 days a month.

However, if they don't meet the requirements, they are not going to get a PR card and even if they do meet the requirements with 12.17 days a month or slightly better, if they work for a US employer and have little record of their crossings and their stays in Canada, it would be hard to prove.

 

[Metta0184]

Hello,

First off thanks for you insight on my situation.

The only records I have to show are all the stamps in my passport, (they don't always stamp it) airlines tickets that I've kept (ink is faded on a lot) and my flight log book for when I have layovers with my company in different cities throughout Canada. I did talked to a CBSA officer in Montreal once to get some information and after our conversation he stamped my passport and wrote PR along with his initials. He was really friendly, but obviously couldn't do anything to help.

I am meeting with the MP in my area later on this month to bring attention to my situation. He knows about my situation since November 2012. At that time he told me to meet with him in 3 months if I didn't hear anything from immigration which I didn't so I met with him again. Between that time and now I acquired an immigration lawyer and submitted my Canadian bank account info, letters of assessment from Canada Revenue, copies of my relatives citizenship cards, Transport Canada pilot license, and all the proof along with a 2 page letter proving that Canada is my home to the office in Ottawa. After meeting with the MP, my lawyer was advised by the MP via email that the Toronto office didn't receive any paperwork and was told that my PR card application was at the local office in Toronto and not in Ottawa and to come back in a couple months to follow up after we send the paperwork to the local Toronto office . My lawyer then re-submitted the paper work about 6 weeks ago to the local office.

Like I said I have an appointment with the MP later this month. Hopefully it helps to speed up the process.

To any or all of you, what is your take on this?

Once again thanks in advance!!!

 

[computergeek]

730 days in 5 years is only 40% of the time - thus one could be outside the country > 50% of the time. So the question probably really does come down to "exactly how much time was spent in Canada".

There may also be other considerations here (e.g., treaty provisions) that apply - I'm honestly not sure. It seems unreasonable ("against natural fairness") to penalize someone who travels as part of his job but only has a domicile in Canada. But of course that is often the nature of immigration, sadly.

 

[Metta0184]

I've pretty much found that trying to get through immigration to explain my situation is imposable. So I've been talking to a MP who said he didn't want me to lose this opportunity and I also hired an immigration lawyer to explain my situation to immigration.

How much pull Do Lawyers and MP's have? Just like everyone in my situation and I know I'm not special and the only one trying to obtain my PR card for l legitimate reasons, I'm up to my head in frustration, but what other resources and options are there?

 

[scylla]

Lawyers have zero pull. All they can really do is help to organize you and make sure you're using all of the arguments / evidence you can. Lawyers only have some pull if you actually find yourself in a courtroom (e.g. appeal situation).

MPs have minimal pull. MPs are typically the most help if your file is pretty straight forward but for some reason your file has by far exceeded normal processing times. I think they have quite a bit less pull if you don't meet the requirements for whatever you're applying for (i.e. they definitely don't trump CIC - all they can do is try to influence). If you have a cooperative MP who's willing to go to bat for you, by all means use them.

 

[Metta0184]

Lawyers have zero pull. All they can really do is help to organize you and make sure you're using all of the arguments / evidence you can. Lawyers only have some pull if you actually find yourself in a courtroom (e.g. appeal situation).

MPs have minimal pull. MPs are typically the most help if your file is pretty straight forward but for some reason your file has by far exceeded normal processing times. I think they have quite a bit less pull if you don't meet the requirements for whatever you're applying for (i.e. they definitely don't trump CIC - all they can do is try to influence). If you have a cooperative MP who's willing to go to bat for you, by all means use them.

I would LOVE to go to court. It's what I've wanted the whole time because no one from CIC bothers to call me or answer my questions when I call to understand my situation. All they say is it's "processing". It's been processing for the last 3 years. How do I do that so I can explain my situation. I'm in an impossible situation because of the professional career that I've chosen for myself. I'm being penalized for my job that requires me to leave Canada for most of the month. And I'm trying to work doing the same career in Canada, but I need a PR card to start the job. My grandma and my mother are getting old so it is essential that I get my PR Card to support them now and later my mother as she gets older.

Do I have case? What else Can I do? Do I have an impossible situation?

Thanks in advance!

 

[computergeek]

You always have the option to go to court. Note that the decision of the court to hear matters under IRPA is discretionary - which basically means that you have to convince them that there is a real issue of law or process. In your case, you might have an argument for procedural unfairness.

One thing I know from personal experience is that going to court involves a third party that happens to have quite a bit of sway over CIC - Justice Canada. CIC does not represent itself in Court. Instead, there are attorneys inside Justice Canada who do so. They will look at your case and while they are unlikely to ever admit that CIC is being unreasonable or unfair, they will push CIC to fix problems when they exist precisely because they don't want to end up in court.

One of the most amazing decisions I've ever read actually involved a PR card. In the end the Court ordered that CIC send a PR card to a permanent resident outside the country - something that is contrary to CIC's policy. It was a case where CIC had dragged their feet in terms of issuing the PR card.

However, very few attorneys have the kind of experience necessary to be successful in Federal Court. It takes a talented advocate just to get you a hearing. Because it is discretionary, you must first ask for the Court's permission to present your case ("application for leave") and then if the Court finds sufficient grounds to hear your case, you are then granted a hearing date, at which point the Court considers your case ("application for judicial review").

If judicial review is granted it means you won - that the Court is going to overturn an order from CIC or issue one of the extraordinary writs to CIC (in your case the obvious writ would be Mandamus).

So if you are willing to pursue this course - and can afford to pay the $5-10k it is likely to cost - you can pursue that. At three years your case does at least seem to be ripe for requesting Mandamus. The fact that they have you in a Catch-22 situation helps your case of procedural unfairness (I don't know they've violated the law here, though there might be Charter arguments one could construct as well).

The best way to find a good attorney for this type of thing is look at the Federal Court decisions and find attorneys who have been successful with similar cases.

For example, I went and found the case to which I referred almost immediately: http://decisions.fct-cf.gc.ca/en/2012/2012fc1471/2012fc1471.html (or http://canlii.ca/t/fv90w). The attorney in this case would be a potentially good choice - the decision he obtained for his client was stunning. The Court slapped CIC surprisingly hard in this case.

Good luck!