Residence Requirement - Complex question

[InfoRequired]

Hi Everyone,

I am new to this forum, so would appreciate any help. I came to Canada on work permit and kept working on it for 5/6 years before getting my PR. After 10 months of my PR my father had an heart attack and I had to go home to take care of him. My Canadian employer retained me and I kept working remotely. I have been coming to Canada for 2 to 3 months in between also.

Now question is that would CIC consider my days outside Canada as valid as I was working for Canadian company abroad? Issue is that they didn't assign me there but infact allowed me to work remotely on humanitarian basis?

Thanks in advance

 

[InfoRequired]

Hi Leon / other Sr members,

Can someone help me with the query please.

Thanks

 

[scylla]

Sorry to hear about your father.

I agree with your assessment of the sitatuation. I don't think you will be able to count your work outside of Canada as time spent in Canada because your employer did not specifically assign you to a role outside of Canada.

Having said that, assuming you can provide evidence of your father's illness, I think you probably stand a good chance of retaining your PR status on a humanitarian basis.

When did you become a PR / when does your PR card expire? Are you planning on returning to Canada soon to live her permanently? Will you be returning before the expiry of your PR card?

 

[InfoRequired]

Sorry to hear about your father.

I agree with your assessment of the sitatuation. I don't think you will be able to count your work outside of Canada as time spent in Canada because your employer did not specifically assign you to a role outside of Canada.

Having said that, assuming you can provide evidence of your father's illness, I think you probably stand a good chance of retaining your PR status on a humanitarian basis.

When did you become a PR / when does your PR card expire? Are you planning on returning to Canada soon to live her permanently? Will you be returning before the expiry of your PR card?

My PR is expiring in early 2014. Yes, I definitely want to move back for good. I just wanted to know how to proceed with PR renewal application. Should I just say that i meet the residence requirement as I was employed by Canadian company or should take the humanitarian route?

What kind of evidence about father's illness needs to be sent along? Also does this increase the processing time?

 

[Msafiri]

1. What was your landing date?

2. How many days do you currently have in the last 5 years (if you landed > 5yrs) or can you have by 5 years (if you landed < 5yrs).

3. Are you filing taxes in Canada?

4. Why is it you that has to look after your father i.e. any siblings, other relative that can look after him?

5. Has he stabilized?

6. Is this arrangement of looking after him a long term thing?

7. Long term remote working to the point it impacts on PR will be a red flag for CIC. What was your original contractual location? Are you 'consulting' for the company?


I ask this as CIC will consider such in dealing with H&C reasons.

 

[InfoRequired]

1. What was your landing date?

2. How many days do you currently have in the last 5 years (if you landed > 5yrs) or can you have by 5 years (if you landed < 5yrs).

3. Are you filing taxes in Canada?

4. Why is it you that has to look after your father i.e. any siblings, other relative that can look after him?

5. Has he stabilized?

6. Is this arrangement of looking after him a long term thing?

7. Long term remote working to the point it impacts on PR will be a red flag for CIC. What was your original contractual location? Are you 'consulting' for the company?


I ask this as CIC will consider such in dealing with H&C reasons.

1: Dec 2008
2: 500
3: Yes
4: Only child
5: Much better now
6: No, he can take care of himself now
7: Not a consultant, I was a FT employee

 

[InfoRequired]

Leon, can you shed some light on this issue please. thanks in advance.

 

[Leon]

I think the Canadian employer will not cut it because your job does not require you to live outside Canada and your employer did not transfer you to an overseas location, it was you who chose to live outside Canada and your luck that you could keep your job by working remotely.

Your angle would be your fathers illness and you needing to take care of him. If you move to Canada now before your PR card expires and you are able to enter without anybody reporting you for not meeting the RO, you could let your PR card expire and not apply to renew until you have 730 days in the past 5 years. This could mean you might have to stay in Canada for a full 2 years before you can apply to renew.

If you want to take your chances with H&C renewal, you can apply to renew your PR card as soon as you arrive based on H&C grounds. You would need to show medical records of your father and letters from his doctor and anybody else who can verify that he needed care and you were taking care of him. Same will happen if you get reported on entry for not meeting the RO, then you would have to appeal for your PR. An application on H&C grounds same as an appeal can take a long time. Someone recently posted that they had been waiting for a year on their appeal. Therefore, it may be the safer route to just wait to renew until you have 730 days because then it will be a normal renewal.

If you do apply under H&C grounds, I think that having kept the job in Canada will win you some points because it shows that you had intentions of returning but the main reason they would let you keep your PR would be proving your fathers illness.

 

[InfoRequired]

I think the Canadian employer will not cut it because your job does not require you to live outside Canada and your employer did not transfer you to an overseas location, it was you who chose to live outside Canada and your luck that you could keep your job by working remotely.

Your angle would be your fathers illness and you needing to take care of him. If you move to Canada now before your PR card expires and you are able to enter without anybody reporting you for not meeting the RO, you could let your PR card expire and not apply to renew until you have 730 days in the past 5 years. This could mean you might have to stay in Canada for a full 2 years before you can apply to renew.

If you want to take your chances with H&C renewal, you can apply to renew your PR card as soon as you arrive based on H&C grounds. You would need to show medical records of your father and letters from his doctor and anybody else who can verify that he needed care and you were taking care of him. Same will happen if you get reported on entry for not meeting the RO, then you would have to appeal for your PR. An application on H&C grounds same as an appeal can take a long time. Someone recently posted that they had been waiting for a year on their appeal. Therefore, it may be the safer route to just wait to renew until you have 730 days because then it will be a normal renewal.

If you do apply under H&C grounds, I think that having kept the job in Canada will win you some points because it shows that you had intentions of returning but the main reason they would let you keep your PR would be proving your fathers illness.

Thanks Leon. Just a question, I was reading the actual law (Residency obligation Act) and no where does it state that the person needs to be transferred abroad. It just states that the person needs to be working for a Canadian company. Section: 28 (2) (a) (iii);

Is this something which they changed recently or do you still think I don't have a case?

 

[Msafiri]

Thanks Leon. Just a question, I was reading the actual law (Residency obligation Act) and no where does it state that the person needs to be transferred abroad. It just states that the person needs to be working for a Canadian company. Section: 28 (2) (a) (iii);

Is this something which they changed recently or do you still think I don't have a case?

IRPA Regs - Division 2

Residency Obligation

Marginal note:Canadian business

61. (1) Subject to subsection (2), for the purposes of subparagraphs 28(2)(a)(iii) and (iv) of the Act and of this section, a Canadian business is
(a) a corporation that is incorporated under the laws of Canada or of a province and that has an ongoing operation in Canada;
(b) an enterprise, other than a corporation described in paragraph (a), that has an ongoing operation in Canada and
(i) that is capable of generating revenue and is carried on in anticipation of profit, and
(ii) in which a majority of voting or ownership interests is held by Canadian citizens, permanent residents, or Canadian businesses as defined in this subsection; or
(c) an organization or enterprise created under the laws of Canada or a province.

Marginal note:Exclusion

(2) For greater certainty, a Canadian business does not include a business that serves primarily to allow a permanent resident to comply with their residency obligation while residing outside Canada.

Marginal note:Employment outside Canada

(3) For the purposes of subparagraphs 28(2)(a)(iii) and (iv) of the Act, the expression “employed on a full-time basis by a Canadian business or in the public service of Canada or of a province” means, in relation to a permanent resident, that the permanent resident is an employee of, or under contract to provide services to, a Canadian business or the public service of Canada or of a province, and is assigned on a full-time basis as a term of the employment or contract to

(a) a position outside Canada;
(b) an affiliated enterprise outside Canada; or
(c) a client of the Canadian business or the public service outside Canada.

Refer to the text in bold. Your situation doesn't meet the criteria...you are remote working not assigned 'outside' Canada. Even if you were the business has to be a bona fide entity...my read of the case is law is that it better be a 'major' read TSE listed business.

Go with either getting the 730 days or with H&C based on looking after your father. Don't scrimp on the documentary medical evidence in relation to the heart attack and the degree of care required.