Maintaining Permanent Residency – A Canadian Permanent Resident Working Abroad

Posted on Categories Residency Obligations
In general, a Canadian Permanent Resident must spend 730 days (2 years) inside Canada in order to meet their Canadian residency obligations. However, in certain circumstances a permanent resident may maintain their status even if they are outside Canada and working overseas for a Canadian company. If you need to miss a day of work get a work alibi here. Relevant statutory provisions Section 28(2)(a)(iii) of Immigration & Refugee Protection Act (IRPA) allows PRs to count any day spent “outside Canada employed on a full-time basis by a Canadian business” towards the five-year residency requirement. Section 61 of the Regulations defines a “Canadian business” and “employed on a full-time basis” as follows: 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. 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. 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. General Considerations Individuals should be aware that CIC scrutinizes these types of situations very carefully. Individuals have tried to use these provisions to ‘play’ the system, and CIC is very skeptical and will investigate in detail. Therefore, although it seems straightforward to provide the documents listed on the website, you need to be careful to explore all the relevant issues and document everything. CIC will do its own research which include looking up a person’s professional and social media profiles such as LinkedIn, Facebook and Twitter to see if what they are stating in the application matches what is posted online. It is important to remember that by using this provision, what you are asking CIC to do is to consider the days spent overseas as though they were days spent in Canada. Therefore, CIC applies the test very strictly. This is supposed to be an exception – and not a way for Canadian Permanent Residents to live overseas indefinitely while not losing their status. The purpose of this exception is to allow Canadian Permanent Residents who intend to reside in Canada long-term to accept temporary assignments overseas without jeopardizing their status. Allowing the Canadian Permanent Resident to travel overseas benefits the Canadian company, and therefore the government does not want to discourage Permanent resident from accepting genuine assignments with a strong business case. 1.   Is this a qualifying Canadian business? On its face, this requirement seems relatively straightforward. Section 61(1)(a) of the Immigration Regulations defines a Canadian business as “a corporation that is incorporated under the laws of Canada or of a province and that has an ongoing operation in Canada.” However, s. 61(2) adds the important caveat that “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.” It is not enough to submit a certificate of incorporation for a Canadian business. In order to show that the business has “ongoing operations” in Canada, the following documents should also be submitted:
  • The nature of the business in Canada;
  • The length of time the business has been operating in Canada; and
  • The number of employees and offices in Canada.
The key here is to show that the Canadian business has legitimate and ongoing business activities in Canada. This is related to the requirement that the Canadian business cannot serve primarily to allow the Canadian Permanent Resident to comply with the residency requirement. This clearly excludes ‘personal services’ business where an individual sets up a corporation in Canada and then provides services to customers overseas through that corporation. However, CIC will also carefully scrutinize small companies (particularly family businesses) where there is little evidence of continuing operations in Canada apart from the work that is being carried out by the Canadian Permanent Resident overseas. 2.     Is the individual employed full-time? Both s. 28 of IRPA and s. 61 of the Regulations make it clear that an individual seeking to take advantage of these provisions must be employed “full-time”. It is not enough to have an employment contract that uses the phrase “full time” – although CIC will require such a document. CIC will look at all the circumstances of the case to determine whether the individual is truly working full-time for the Canadian business.For example, is the salary claimed  commensurate with the position stated. Is the individual working in another job apart from their position with the Canadian business.
3.    Is the individual “assigned” to a position outside Canada?
Finally, it is not enough to show that the individual is working for a Canadian business. Section 61(3) of the Regulations requires that the person be “assigned” to a position overseas. In other words there must be at least the possibility of a position for the employee in Canada at the end of the assignment overseas. In the case of Jiang (2011) FC 349, the Court found that the position was not an “assignment” because the job was reserved for local employees (i.e. residents of the overseas country). There was no documented commitment by the employer that there would be a position for the PR in Canada. In Bi, 2012 FC 293 (CanLII) at para 15, the Federal Court commented on the rationale for the Court’s decision in Jiang as follows: Clearly, the Court was opposed to an employee accumulating days towards meeting their residency requirement simply by being hired on a full-time basis outside of Canada by a Canadian business. Instead, it was this Court’s view that the permanent resident must be assigned temporarily, maintain a connection with his or her employer, and to continue working for his or her employer in Canada following the assignment. In order to address these concerns, both the employment contract and the letter from the Canadian company should specifically address the individual’s role within the company; the rationale for the assignment; the length of the assignment; and the contemplated arrangement after the end of the assignment. It is clear that CIC does not intend for this provision to allow companies to hire Canadian Permanent Residents to work overseas, with no intention of having them return to Canada. As discussed above, the purpose of this exception is to allow Permanent Residents who intend to reside in Canada long-term to keep their status even if they are assigned overseas temporarily by a Canadian business.  And don’r forget to get dress so you receive all letters! You can use https://www.change-of-address-online.com/addresschange/uspostoffice/ for that.  Conclusion In our experience, many individuals are confused by these provisions and do not appreciate how strictly they are applied by CIC. It is not simply a matter of putting in a job letter and employment contract that ‘say the right things.’ CIC Officers will investigate the circumstances of the arrangement. Officers will do their own research and look for evidence that the individual is actually carrying on other business activities (such as consulting) under the guise of employment with the Canadian business. Therefore, extensive documentation must be collected addressing all of the points discussed above to be able to justify the rationale for the assignment overseas.
HarjitGrewal

About the Author

Harjit Grewal was born and educated in the United Kingdom where he obtained his LLB (Bachelor of Law) and LLM (Master of Law). He practiced British immigration law for seven years with the respected Immigration Advisory Service as a member of the Law Society of England & Wales and the Office for the Immigration Services Commissioner (OISC). After moving to Canada he secured the prestigious ICCRC designation to provide authorized Canadian visa and immigration services.

Comments

  1. Hi Harjit,

    Your article is very helpful to me right now. Thanks! I am exactly on the same case as what you have described, i.e. a Permanent Resident and employee of a Canadian company sent overseas to work for a position. However, I have a question regarding the time spent towards applying for Citizenship.

    Prior to accepting my overseas assignment last April 2015, the rule regarding the time spent of working overseas under a Canadian business is still in place (i.e. one day of working overseas is equal to one day in Canada). However with the recent updates in Canadian Immigration and Citizenship rules, I wonder whether this rule still applies. I will appreciate if you can clarify this.

    Thanks,
    Francis

    1. Hello Francis. For Canadian citizenship you will need to be physically present inside Canada for the days to count towards your citizenship residency obligations.

      Working overseas for a Canadian company will only count towards permanent residency obligations and maintaining PR status.

      I hope this makes sense!

  2. I am a PR holder, and planning to live abroad with Canadian spouse.
    Do the days spent overseas count for the 730 required days ?

    1. According to section 28(2)(a)(ii) of the Immigration and Refugee Protection Act a permanent resident complies with the residency obligation with respect to a five-year period if, on each of a total of at least 730 days in that five-year period, they are:

      (ii) outside Canada accompanying a Canadian citizen who is their spouse or common-law partner

      So the answer to your question is yes.

      1. Hello Harjit, your post is one of the most detailed on the matter, congratulations!

        Still, an interesting question remains: What if a person is an employee of a Canadian company that works remotely lives out of Canada? In this case, he/she is not required to go the the office and, therefore, can be located anywhere. Would this time count for the permanent residency requirement?

        Thanks,

  3. Hello
    Dear friend
    I am a foreign medical graduate and permanent resident living in toronto since 2014.
    I think next year I can apply for citizenship.
    But this year I found a job offer from redcross canada as medical delegate for overseas missions
    I wanna know ,working with redcross ,can be addressed as working in a Canadian business or public service outside Canada?
    Is there any topic in citizenship laws ,clearly depicting redcross and what can I proper info?
    Thank you so much for your attention
    Truly yours
    Shahram

  4. Dear.

    I’m applying for express entry to Canada. As of now I’m working with Canadian company for more then 2 years but out side Canada . I have 5 years visit visa as I need to travel twice a year to Canada. Can I state in the application that I have Canadian experience. If answer is yes . What type of docum I shall need from my company
    Appreciate your reply

    Thank you

  5. Hello Harjit, your post is one of the most detailed on the matter, congratulations!

    Still, an interesting question remains: What if a person is an employee of a Canadian company that works remotely lives out of Canada? In this case, he/she is not required to go the the office and, therefore, can be located anywhere. Would this time count for the permanent residency requirement?

    Thanks,

  6. Hi,
    I am a candian Permanent Resident . My wife has lost her canadian permanent resident status as she was away from canada for 5 years after having lived in canada for 3 years. She has been denied visa for returning permanent resident. As I am still a permanent resident , can she retain her resident status

  7. Still, an interesting question remains: What if a person is an employee of a Canadian company that works remotely lives out of Canada? In this case, he/she is not required to go the the office and, therefore, can be located anywhere. Would this time count for the permanent residency requirement?

    Thanks,

  8. If a person looses he/her PR status for not meeting the physical presence requirement and your spouse and children have PR and some citizen. Can the person be granted citizenship, if he meets this requirement after retirement but as a visitor leaving with the children?.

  9. Can a person with Canadian PR work abroad if it is not a Canadian company, and just not count it towards days in Canada? My husband and I are teachers and looking at going abroad for a year to teach. Wondering if this is allowed?

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