Hello All,
I want to clarify some of the doubts and hope that it can be answered here;
Me and my family got my PR card back in Oct 2015 with an expiry date of Oct 2020. My wife and daughter moved to Canada in July 2016, Eventually they completed their 3 year and now the citizenship application is under process. I have a rotational job outside Canada, ( 6 weeks on / 3 weeks off) and based on the rotational leave calculation till Oct 2020, I will be short of 60 days out of 730 days. I tried to find a job in my field here in Canada but very difficult because of a very specialized field.
So I have 2 options;
1. Apply for PR renewal, after they CBSA reject it, I appeal based on humanitarian grounds ( as per lawyer, it will be easy) but could take 6 months.
2. The other option is to get my PR lapsed in Oct, then apply for visitor visa and in parallel, apply for spouse sponsorship ( which could take 1 year).
Can you guys let me know, what are the pros and cons for both options.
Thanks for your replies in advance.
Better to follow a competent lawyer's advice than what any of us offer here. Way way better.
Based on the facts you are reporting it is likely the assertions here that you have no H&C case are WAY WAY off.
As much as lawyers are not perfect sources, they are FAR FAR better sources than what is posted in a forum like this (including anything I post).
SHORT RESPONSE TO PARTICULAR QUESTIONS:
It is possible to renounce your PR status and then rely on visitor visas to visit family until some time in the future, when you are actually ready to make the move to settle PERMANENTLY in Canada.
But given the likelihood (based on what you have reported here) you do have at least a fair to good H&C case, the lawyer's advice makes sense. Fair chance to keep PR status for now. Fair chance to win an appeal to keep status even if the PR card application results in being Reported and issued a Departure Order. And even if that does not succeed, that process would give you at least another six months and quite likely even a year before you lose PR status and then rely on visitor visas to visit family . . . until some time in the future, when you are ready to STAY in Canada, your spouse sponsors you for PR again.
All that said: if living in Canada and having status to do so permanently is a big priority for you, it may be time to make some hard decisions about your employment. The best way to assure a future IN Canada will be to make the move to be fully settled (including employment) IN Canada sooner rather than later.
THE LONGER RESPONSE:
In any event, you do have significantly positive H&C factors . . .
You have family in Canada. That is a big positive H&C factor.
It appears much of your life is based in Canada. That is a huge positive H&C factor. This includes you regularly coming and going.
The extent to which you fall short of meeting the PR Residency Obligation appears to fall in the range of "moderate" as described by many officials who sit as IAD panels. This should have some positive influence even if not a lot.
The employment reasons for being abroad so much MIGHT be a positive H&C factor as well, but this can depend on many other factors. It is true that generally employment abroad is considered an individual "choice," and thus not a positive H&C factor. However, there are situations in which Canadian officials will treat this as a somewhat positive factor in the sense it is a reasonable explanation for why the PR has fallen short of complying with the RO . . . SO LONG AS it is readily apparent the PR is genuinely making the effort to make the move to settle in Canada PERMANENTLY.
THAT SAID, ANY H&C CASE CAN BE TRICKY, and MOST ARE DIFFICULT. No guarantees. Best to avoid relying on H&C relief if that is at all possible.
I am guessing that so far you have not encountered a serious challenge about RO compliance at the PoE when you return to Canada, even though you are obviously already, at the least,
cutting-it-close and may even already be in breach. This is probably due to the extent to which it is apparent you are based in Canada and spending a considerable amount of time in Canada between each trip abroad. Neither CBSA nor IRCC engage in
gotcha-games, so such a pattern tending to show an ongoing connection to a life in Canada will often get a pass . . . BUT ONLY to a point. Both CBSA and IRCC have a mandate to enforce the law, including the law prescribing the PR Residency Obligation.
Thus, fair chance you are OK so long as you are traveling with a valid PR card.
BUT applying for a new PR card is one of those
forcing-their-hand transactions. Even though the law does not prescribe that RO compliance is a requirement for being issued the PR status card, a formal determination of RO compliance is part of the process. At BEST, at the very best, if the number of days you have been in Canada are not enough to meet the RO, that will likely result in non-routine processing and a much longer processing timeline. It could be many months for IRCC to assess whether to exercise its discretion to allow you to keep PR status, despite the breach of the RO, and issue you a new PR card for H&C reasons. Perhaps even a year. Not sure if you can easily travel via the U.S. after your PR card expires while the PR card application is pending, but if not, you will either be stuck in Canada or will need to apply for a PR TD while abroad. And if you apply for a PR TD that will for sure lead to a formal RO determination and it is readily apparent that visa office decision-makers are MORE STRICT in RO breach cases.
Bottom-line: even with a good H&C case (which given a lawyer's opinion and what you report, seems you have), there is NO guarantee
and even a stronger H&C case would be RISKY. And, in the meantime, it appears that you will very likely NOT have a valid PR card for a significant period of time.
So it appears you are on a collision course with making some hard decisions. If you could take an extended leave from your employment abroad, enough to get you over the forty percent threshold (that is, so that you have spent 2 of the most recent 5 years in Canada), IN CONJUNCTION with making progress toward totally relocating to Canada, that could get you through the next patch.
Other than the problem of a potentially lengthy period of time with no PR card, if your PR card application is referred to a local office for an RO investigation and that leads to an interview and being issued a 44(1) Report and Departure Order, that can be appealed and that would likely take many months up to more than a year. Especially with the help of a lawyer. And if in the meantime you finally get employment in Canada and are staying, odds of the H&C case prevailing at that stage should be at least fair. In any event, you would be able to get one-year PR cards while an appeal is pending.
Beyond that, you also have the safety net of spousal PR sponsorship in the event you lose the appeal, and thus lose your PR status. But be aware that relying on that also involves some risks.
