Category Archives: Permenant Residency Card

RIMBits Revealed (July 2010)

The following are some excerpts from the July 2010 RIMbits.  RIMbits are messages sent from National Headquarters to missions overseas.  The July 2010 RIMbits on admissibility consisted of eight questions and answers or bulletins.  I have reproduced three of them for free below.

Please note that the questions and answers below should not be viewed as legal advice.  Rather, they are simply reproductions of how CIC senior management answered specific questions from visa offices in July 2010.

Canadian citizen Visiting Forces Act applicant

Q. We ask for your opinion on the process for a Canadian dual citizen and his family who wish to enter Canada under the Act on Visiting Forces at the request of the ________ government. The applicant and spouse currently have official _____  passports. The sons, also dual citizens, have an ordinary ____ passports stating “son of government agent.” With what documentation should the applicant and his sons travel? Obtaining proof of Canadian citizenship for the children could take 14-16 months.

Also, the spouse has no status in Canada. The Foreign Worker Guide indicates that dependents of people who are in Canada under the Visiting Forces Act qualify for an open work permit. As the spouse of a Canadian citizen, is the wife still eligible for a work permit or study permit?

A. The Canadian citizens (principal applicant and sons) could arrive in Canada with their Official passports ______ with no permits or visas; however, the Port of Entry will have to investigate again their status as Canadian citizens. Therefore, I suggest that the applicant and his children be issued Facilitation visas so that CBSA POE will have the full story at their fingertips. The visa-exempt spouse, as accompanying dependent under the Visiting Forces Act, should be issued an open study-work permit.

Permanent residence determinations -accompanying a now-deceased spouse

Q. We need your expertise and clarification on a permanent residence determination dealing with a permanent resident accompanying a Canadian citizen spouse outside of Canada.

The 5-year period of consideration is from _____ to _____ . We determined that the applicant had only spent 171 days in Canada and did not meet the residency obligations. However, until ______ when the applicant’s spouse died, he was accompanying a Canadian citizen.

My understanding for accompanying is that the spouse/common-law partner must be alive. If the spouse or common law partner is deceased and has been deceased for a number of years should we be counting the time spent while alive for residency determinations?

A. Yes, you should count the time the applicant was accompanying a living Canadian citizen. When determining physical presence in Canada, each part of a day in which a person is accompanying a Canadian citizen outside Canada counts as a day in Canada. In this case, the time spent accompanying the Canadian citizen spouse outside of Canada up to and including _______ should be considered.

A similar case can be made for permanent residents who were previously married to Canadian citizens. The period of time where the permanent resident accompanies a Canadian citizen spouse should count towards residency requirements until the date of a legal separation or, if no legal separation exists, the date of the divorce decree.

Medical inadmissibility

Q. I would like to find admissible an applicant that the medical officer has found inadmissible for excessive demand for social services (MOS).

The medical officer indicates that this individual is inadmissible for excessive demand on social services.

I disagree. I am not satisfied that this person is medically inadmissible, and I believe that this decision is mine under the Act and related jurisprudence. However, there are no instructions on how to issue a visa on a case where there is an MOS. I do not plan to send a procedural fairness letter, because I am not satisfied that there is inadmissibility.

A. Ultimately, it is the visa officer that determines if an individual is inadmissible, not the medical officer. If there is, in your opinion, sufficient information on file to counter the excessive demand component of an MOS assessment, then there would appear to be little gained by going through the procedural fairness exercise. You may want to confer with your IPM on whether it is appropriate to waive this administrative step.

For issuing a visa, you can “override” the MOS assessment in CAIPS. It is recommended that you record your argument for visa issuance in CAIPS notes.

OB 63B addresses this issue:

Coding

At the end of the process, if the applicant has satisfied the immigration/visa officer that they have the ability and intent to mitigate the cost of the required social services, the immigration/visa officer will enter a positive medical decision code “1″ in FOSS or CAIPS, as applicable. Although the medical assessment code will remain unchanged (MOS), CAIPS will permit a Final Decision code “1″ (visa issued).

PR Cards will no Longer be Mailed to Permanent Residents’ Representatives

On January 14, 2013, Citizenship and Immigration Canada (“CIC“) issued Operational Bulletin 491 – Mailing Permanent Resident Cards (“PR Cards“) to Representatives (“OB-491“).  OB-491 is an update to the 2012 Pilot Project to mail permanent resident cards directly to applicants instead of having them attend at a CIC office.

Many permanent residents have been requesting that CIC mail their PR Cards to their authorized representatives.  This apparently caused CIC to be concerned that authorized representatives would forward the PR Cards to permanent residents overseas, which is (possibly) contrary to (the somewhat unclear) subsection 55 of the Immigration and Refugee Protection Regulations (the “Regulations“), which states:

DELIVERY

55. A permanent resident card shall only be provided or issued in Canada.

OB-491 accordingly clarifies that CIC will mail PR Cards issued to new immigrants (also known as “Phase I Cards“) to third parties in Canada, including friends, relatives, service providers or paid representatives, in order to facilitate the processing and issuance of PR Cards to new immigrants as they may not yet have a permanent address in Canada.

OB-491 also stipulates that CIC will only mail renewal or replacement PR Cards (also known as “Phase 2 Cards“) directly to applicants with permanent residential addresses in Canada.  CIC has accordingly already started sending the following letters (the “CIC letters“) to permanent residents who request that their Phase 2 Cards be mailed to third parties:

Your application indicates your representative’s address as your home and mailing address. As per subparagraph 56(2)(a)(iv) of the Immigration and Refugee Protection Regulations, we require that applicants provide their personal mailing address, as Permanent Resident Cards are not mailed to third parties.

Please provide your mailing address and the information requested by “dd, mm, yyyy” to enable us to issue your Permanent Resident Card. If the information requested is not provided by the date indicated, we will consider your application as abandoned and you will have to submit a new application, including processing fees.

Once you have provided this information we will continue with the processing of your application.

How does CIC plan to issue Phase 2 Cards to permanent residents who do not have a permanent address in Canada?  The Immigration and Refugee Protection Act (the “Act”) provides that permanent residents maintain their permanent resident status if they are outside of Canada accompanying a spouse who is a Canadian citizen.   Many such individuals may visit Canada with their spouse frequently, but they do not have a permanent address here.  This is quite common, and our office regularly helps such permanent residents renew their PR Cards.  If third parties can no longer receive the PR Cards and hold them until they next visit Canada to pick their PR Cards up, how can these individuals renew their PR Cards?

Is there going to be a mechanism for them to pick them up from a CIC office?

“Assigned To” and the Residency Test for PR Status

 

As previously discussed on this blog, one of the ways to satisfy the residency obligation of maintaining permanent residency is to be employed outside of Canada on a full-time basis by a Canadian business or in the federal public administration or the public service of a province.

A thorny issue that has arisen in the context of determining whether someone meets this requirement is whether an employee had been “assigned” to an overseas affiliate of a Canadian business, and whether it was necessary for there to actually be an “assignment” from the Canadian business.

In Canada (Citizenship and Immigration) v. Jiang, 2011 FC 349, the Federal Court addressed this issue.

At issue before the Court was whether the Immigration Appeal Division had erred in determining that neither the Immigration and Refugee Protection Act or the Immigration and Refugee Protection Regulations required that an assignment of a foreign employee must be effected from Canada.  In the Jiang case, a Canadian permanent resident living in China had been hired by a Canadian business while she was in China.

The relevant section of the Regulations reads:

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.

The Federal Court ultimately disagreed with the Immigration Appeal Division, and ruled that the word “assigned” in subsection 61(3) means that an individual occupying a position outside Canada on a temporary basis.  It also requires that the individual be likely to return to Canada once the assignment is completed.

The issue of what constitutes employment on a full time basis abroad is one that is frequently litigated before the Immigration Appeal Division, and this case goes a long way towards resolving uncertainties in the law regarding the issue.

Maintaining Permanent Residency Status While Working Abroad

In today’s increasingly mobile world, many immigrants are having trouble meeting the residency requirements to maintain permanent residency.  In what is known as the “2 year out of 5 rule”, permanent residences are required to spend 2 years out of every 5 living in Canada in order to maintain their status. However, there are important exceptions to this rule.  Section 28 of the Immigration and Refugee Protection Act provides that:

Residency obligation

28. (1) A permanent resident must comply with a residency obligation with respect to every five-year period.

Application

(2) The following provisions govern the residency obligation under subsection (1):

(a) 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

(i) physically present in Canada,

(ii) outside Canada accompanying a Canadian citizen who is their spouse or common-law partner or, in the case of a child, their parent,

(iii) outside Canada employed on a full-time basis by a Canadian business or in the federal public administration or the public service of a province,

(iv) outside Canada accompanying a permanent resident who is their spouse or common-law partner or, in the case of a child, their parent and who is employed on a full-time basis by a Canadian business or in the federal public administration or the public service of a province, or

(v) referred to in regulations providing for other means of compliance;

(b) it is sufficient for a permanent resident to demonstrate at examination

(i) if they have been a permanent resident for less than five years, that they will be able to meet the residency obligation in respect of the five-year period immediately after they became a permanent resident;

(ii) if they have been a permanent resident for five years or more, that they have met the residency obligation in respect of the five-year period immediately before the examination; and

(c) a determination by an officer that humanitarian and compassionate considerations relating to a permanent resident, taking into account the best interests of a child directly affected by the determination, justify the retention of permanent resident status overcomes any breach of the residency obligation prior to the determination.

Time spent abroad working for a Canadian company counts as time spent in Canada.  The ability to maintain permanent residency while working for a Canadian business abroad has led much confusion, as well as to an explosion of fake businesses. Indeed, the difficulty in determining whether someone has met this requirement is likely one of the main reasons for the dramatic increase in the processing times of renewal permanent residency cards.

The Immigration and Refugee Protection Regulations describe a “Canadian business” as being:

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; (author’s note: this includes not-for-profits)

(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

In order to rely on this exception, an individual will likely have to produce numerous documents in order to determine whether they are legitimately working abroad for a Canadian business. These documents include the Articles of Incorporation, the Corporate Annual Reports, the Corporation Notice of Assessment, other financial statements, the employee’s employment contract, and a job description.

Given the extremely complicated nature of this exception, it is advised that people seek representation to ensure that all the documents are there. The risk in not doing so is delays in processing, which can greatly hinder the ability to travel.

CIC Hires More PR Card Renewal Processing Staff

I have commented extensively upon the increased wait time in processing permanent residency card renewals.  I have noted that the dramatic increase from an average of 40 days to the current 191 cannot be the result of an increase in applicants, because the number of applicants is actually decreasing.  I hypothesized that the actual reason was likely due to either an increase in the complexity of files, or staffing issues.

Today the Cape Breton Post is suggesting that the issue is indeed staffing.

Apparently, layoff notices were issued to 84 temporary employees and 63 casual workers (for a total of 147 employees) at CIC Sydney, which is where citizenship applications and PR Card renewals are processed.

The department, however, announced yesterday that up to 160 new positions will be filled this month.

PR Card Renewal Wait Times Continue to Increase, plus: Use of a Representative : 說不出代辦名字易惹官質疑

Less than three weeks ago I commented on the increased delay in processing PR Card Renewals.  The processing time had gone from roughly 40 days in January, to 80 days in April, to 171 days on July 16th.

The situation is not improving. According to CIC’s website, the current wait time is 193 days.  CIC is currently processing applications that were received on February 8, 2010.

In Ming Pao I suggested that this might be due to an increase in the amount of people applying for PR Card renewals, as well as staffing changes at CIC.

Using data recently provided by CIC, I have come to the conclusion that the first explanation might not be true.

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Wait Times for PR Card Renewal Dramatically Increase : 申請人及律師炮轟 中國新移民遭歧視

The processing time for PR Card renewals has ballooned from roughly 42 days to 171.  There are several reasons for this, including personnel reductions at Case Processing Centre  Sydney, a higher than expected number of permanent residences wanting to renew their permanent resident card instead of applying for citizenship, and increased complexity of some of the files.

I was quoted on this matter in yesterday’s Ming Pao:

不增人手 問題更惡化

移民律師辛湉王(Steven Meurrens)則說,移民部完全錯估了楓葉卡第一次5年到期後、仍未累積夠居住時間而須再更換楓葉卡的人數。他指出,2002年楓葉卡推出5年 後,2007年開始接受換卡,今年才是接受換卡的第3年,人數已多到令現有人力無法負擔的程度,如果再不加人手,問題只會更惡化。

辛湉王 說,楓葉卡更換的過程比想像中複雜,例如被派到國外加拿大公司工作的永久居民,必須盡可能繳足所有證明在當地居住的文件,由於之前有個案造假,移民部對派 駐海外工作永久居民的楓葉卡更換申請,調查特嚴格,如此均拖慢所有的申請進度。

Yesterday I also recommended to an individual who is a frequent flyer and whose PR card was set to expire in February that he start the application process now. He replied that this would cause great difficulties because he would have to turn in his existing, still valid, PR Card.

This is not the case.

From Immigration Canada’s website:

If you are applying to renew your present card and:

  • your card has expired, you should return it with the completed application for a new card or
  • your card is still valid, you may hold on to it and return it to a CIC officer when you pick-up your new card at a local CIC office.

If you are applying to replace your damaged card, you should return your card with your application.

Individuals who are deciding whether or not to apply early to renew their PR Card should thus not worry about having to turn their existing card in.