My previous article on the Permanent Resident Card (PRC) was well received by readers and I have been asked many follow up questions.

The residency requirement

The bulk of the questions have to do with the residency requirement, which all readers should know is very inflexible. Section A28 of the Immigration and Refugee Protection Act clearly set forth the requirement that permanent residents must meet a minimum residency requirement of 730 days in the five-year eligibility period of their PRC. In other words, the permanent resident can spend a maximum of three years out of the country or minimum of two years in Canada within the five-year period.

There are, however, instances when the time a permanent resident spends outside the country is not counted against them. Two examples are:

1. when the permanent resident is accompanying a Canadian citizen who is their spouse or common law parent, or in the case of a child, their parent
2. or if they are outside the country in the employment of a Canadian company or if they are the spouse, common law partner or dependent child of a permanent resident who is employed abroad by a Canadian company.

Several readers have asked for clarification about what immigration officials accept as “Canadian” in terms of employment abroad.

In case one, a subject was in Canada for less than one year and then accepted work abroad with a foreign company. He worked for three years without returning to Canada and would like to know if he has lost his permanent resident status. The quick answer is to determine the number of actual days the person was resident of Canada following his landing date and also the days he worked outside the country. If he was to return today it is possible for him to still meet the minimum 730-day residency requirement. He would be able to return to Canada and be admissible because he has not violated the residency requirements set forth in the Act.

When the residency requirement is not fulfilled

A secondary question concerns a permanent resident who lived in Canada for a short period of time and then worked abroad for more three yearsand therefore would not meet the basic residency requirement. What can happen when such a person appears at a port of entry and requests admission to Canada? He or she may be readmitted following a brief examination in which the examining officers will ascertain the reasons for the absence and determine if the permanent resident had worked abroad for a Canadian company or it there are any humanitarian and compassionate aspects to the case, such as the best interests of a child. Or, the examining officers can interview the subject and advise him or her that they appear to be inadmissible based upon their apparent failure to meet the residency requirement. The officers could then write up a A44(1) report and advise the subject that they may become subject to a removal hearing. If that is the case, the individual would still have a chance to appeal to the Immigration Appeal Division. The appeal period inside Canada is 30 days, and 60 days outside Canada.

 Once an A44 report has been written up, any time spent in Canada will no longer be added to the person’s residency. There are also no guarantees for that any appeal to the Immigration Appeal Division (IAD) will be upheld or the removal order will be stayed. So, the best advice is to respect the 730-day residency period and ensure that you do not end up possibly losing your permanent resident status.

What is Canadian employment abroad?

If the subject has worked for a Canadian company abroad, however, then the time spent in the foreign workplace may be included within the 730-residency period. “Canadian employment” is described in the Act. R61 describes what is considered acceptable Canadian employment abroad for residency requirements. The work should be full time for a Canadian business described as incorporated in Canada, majority of ownership is Canadian, created by laws of Canada or a province, or employment with the public service of Canada or service of one of the provinces. There are situations where exceptions can be made for persons who have visited Canada within the 365 days prior to the day they returned or where humanitarian and compassionate aspects of the case could cause the examining officers to exercise additional discretion. If you have any questions about the status of such employment you can always check with an immigration lawyer or licensed immigration consultant to determine your options.

Michael Scott BA (Hon), MA, is a 30-year veteran of Canada Immigration and the Manitoba Provincial Nominee Program who works as an immigration associate with R.B. Global Immigration Consultants Ltd. He can be reached at 838 Ellice Avenue in Winnipeg, Manitoba or by telephone at: (204) 783-7326 or (204) 227-0292.

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