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.
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.