Last updated on May 4th, 2020
In today’s increasingly globalized world, many immigrants have trouble meeting Canada’s residency requirements for permanent residents.
Most permanent residences know that they are required to spend 2 years out of every 5 living in Canada in order to maintain their status, in what is commonly referred to as the “2 year out of 5 rule.” However, it is important to know that there are additional actions that count towards the “2 year out of 5 rule” in addition to physical presence in Canada. Section 28(2)(a) of Canada’s Immigration and Refugee Protection Act states that:
28. (2)(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.
As noted in section (iii), the time that a permanent resident spends abroad working for a Canadian company counts towards the two-year out of five rule.
Working for a Business Abroad
The ability to maintain permanent residency while working for a Canadian business abroad is probably the most complicated way to satisfy the residency requirement.
In order to rely on this exception, permanent residents 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.
Because of how vague the exception is, and how often individuals try to claim that they are encompassed by it, Parliament and the judiciary have set out several rules about what constitutes a qualifying assignment.
They are (source added after every rule):
- The permanent resident must work for a business that is a corporation incorporated under Canadian laws that has an ongoing operation in Canada: Immigration and Refugee Protection Regulations (the “IRPR“) s. 61(a)
- If the business is not a corporation, then it must be an enterprise that has an ongoing operation in Canada that is capable of generating revenue and whose goal is to make a profit and in which a majority of voting or ownership interests is held by Canadian citizens or permanent residents: IRPR s. 61(b)
- In both cases above the business cannot serve primarily to allow a permanent resident to comply with their residency obligation: IRPR s. 61(2)
- The permanent resident must be under contract to provide services to the Canadian business and be assigned on a full-time basis as a term of the employment or contract to a position outside Canada: IRPR s. 61(3)
- It is not preferable that the work be as an employee rather than a contractor to the business: Ghali v. Canada (Public Safety and Emergency Preparedness), 2016 FC 1277
- To have time spent outside of Canada count toward the residency requirement, the permanent resident must be assigned temporarily, must maintain a connection with his employer, and must return to work for it in Canada following the assignment: Canada (Citizenship and Immigration) v Jiang, 2011 FC 349
- The concept of assignment in subsection 61(3) of the Regulations requires that the employee return to work for his or her employer in Canada following the assignment: Bi v Canada (Citizenship and Immigration), 2012 FC 293
- There must be more than mere assurances or possibilities that the person will return to Canada to work at a position in the assigning company: Canada (Citizenship and Immigration) v. He, 2018 FC 457
- There should be evidence of how the employer plans on reintegrating the individual into the Canadian workplace: Canada (Citizenship and Immigration) v. Luo, 2020 FC 543