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As a permanent resident, the general rule to apply for Canadian citizenship is to have 1,095 days of physical presence in Canada in the previous 4 years.

If you meet that test, great.

But what if you were out of the country for a few days per month?  What if you have to be out of the country a few days per month (like one of my clients who has business in the USA)?  Can you apply with anything less than 1,095 days?

Yes you can.

To say that the law on physical presence is currently in a state of confusion would be an understatement.  There are several cases at the Federal Court that all say different things.

However, citizenship judges will generally look at your ties to Canada if you have less than 1,095 days.  So let’s look at the factors the citizenship judge will consider, so you can draft your submission accordingly.  Note that generally, only temporary and relatively short absences will be considered as exceptions – lengthy absences and living away from Canada will not fall within the factors below.

1. Was the individual physically present in Canada for a long period prior to recent absences which occurred immediately before the application for citizenship?

This means that you lived here for close to 3 years, left for a period of time (a few months perhaps) but then returned and live here permanently.

2. Where are the applicant’s immediate family and dependents (and extended family) resident?

Let’s say you have regular business trips outside of Canada.  But most or all of your family live here.  It shows you have real ties to Canada, so those days away may count as physically residing here.

3. Does the pattern of physical presence in Canada indicate a returning home or merely visiting the country?

If you leave Canada regularly but stay in hotels, it looks like you are returning home each time, so those days away can count as presence here.  However, if you own a residence elsewhere and leave the country to live there, it may appear as you are visiting Canada and living elsewhere, so those days may not count as presence here.

4. What is the extent of the physical absences – if an applicant is only a few days short of the 1,095 total it is easier to find deemed residence than if those absences are extensive.

Pretty straightforward – the fewer absences the better under this exception to the physical presence rule.

5. Is the physical absence caused by a clearly temporary situation such as employment as a missionary abroad, following a course of study abroad as a student, accepting temporary employment abroad, accompanying a spouse who has accepted temporary employment abroad?

This the exception that most applicants use.  You live here and your employer compels you take an assignment abroad.  If you are going to try this approach, you better have lots of evidence, including an employment contract and a detailed letter from your employer explaining why you were required to work out of the country and what you were doing.

6. What is the quality of the connection with Canada: is it more substantial than that which exists with any other country?

If you want to use this exception, show all your links to Canada: job, property, involvement in the community, contacts, social organizations – whatever you can.  Also if you pay tax here and no other place, make a point of that too.

You should note that one line of case law says citizenship judges must look at the factors above if you have less than 1,095 days.  Another line of case law says they can rely on strict physical presence in Canada.  So you are taking your chances applying with fewer days.

But most citizenship judges will apply the above factors, and if you run into one who sticks with physical presence, you can always apply again once you have 1,095 days.

Always a good idea to speak with a lawyer before applying.

I hope you found this article useful, and if so, feel free to share a link to it with your social network or on your blog or website.

suitcase with a canadian flag on itIf you missed out applying under the federal skilled worker program last year because your occupation reached its cap, there’s good news.

CIC just announced a new list of occupations for applicants beginning May 1, 2014.  The overall cap is set at 25,000 applications for the next 12 months.  There are sub-caps of 1,000 for each of the 50 eligible occupations (I’ve listed them below, along with links to the NOC descriptions).

So if you are interested in applying under this program, do it quickly.  Last year, some of the occupation sub-caps were reached by the end of June.  If you like help applying, please feel free to contact me.

Remember, your job title does not necessarily have to match the titles below, but you must be able to show you performed the duties of each occupation (or at least a substantial number of them, depending on the circumstances).

Eligible occupations for May 1, 2014 to April 30, 2015

  • Senior managers – financial, communications and other business services (0013)
  • Senior managers – trade, broadcasting and other services, n.e.c. (0015)
  • Financial managers (0111)
  • Human resources managers (0112)
  • Purchasing managers (0113)
  • Insurance, real estate and financial brokerage managers (0121)
  • Managers in health care (0311)
  • Construction managers (0711)
  • Home building and renovation managers (0712)
  • Managers in natural resources production and fishing (0811)
  • Manufacturing managers (0911)
  • Financial auditors and accountants (1111)
  • Financial and investment analysts (1112)
  • Securities agents, investment dealers and brokers (1113)
  • Other financial officers (1114)
  • Professional occupations in advertising, marketing and public relations (1123)
  • Supervisors, finance and insurance office workers (1212)
  • Property administrators (1224)
  • Geoscientists and oceanographers (2113)
  • Civil engineers (2131)
  • Mechanical engineers (2132)
  • Electrical and electronics engineers (2133)
  • Petroleum engineers (2145)
  • Information systems analysts and consultants (2171)
  • Database analysts and data administrators (2172)
  • Software engineers and designers (2173)
  • Computer programmers and interactive media developers (2174)
  • Mechanical engineering technologists and technicians (2232)
  • Construction estimators (2234)
  • Electrical and electronics engineering technologists and technicians (2241)
  • Industrial instrument technicians and mechanics (2243)
  • Inspectors in public and environmental health and occupational health and safety (2263)
  • Computer network technicians (2281)
  • Nursing co-ordinators and supervisors (3011)
  • Registered nurses and registered psychiatric nurses (3012)
  • Specialist physicians (3111)
  • General practitioners and family physicians (3112)
  • Dietitians and nutritionists (3132)
  • Audiologists and speech-language pathologists (3141)
  • Physiotherapists (3142)
  • Occupational therapists (3143)
  • Respiratory therapists, clinical perfusionists and cardiopulmonary technologists (3214)
  • Medical radiation technologists (3215)
  • Medical sonographers (3216)
  • Licensed practical nurses (3233)
  • Paramedical occupations (3234)
  • University professors and lecturers (4011)
  • Psychologists (4151)
  • Early childhood educators and assistants (4214)
  • Translators, terminologists and interpreters (5125)

Hand stopping motionThe Government of Canada just announced that there is an immediate moratorium on foreign worker applications in the fast food sector for all provinces.

Why did this happen?

There will be a full review of the program after several media stories of a few employers who allegedly abused the program by hiring foreign workers when perhaps there may have been Canadians available to do the work.

Or that Canadians already working had their hours cut after the company hired foreign workers.

The most high profile case was that of McDonalds Restaurants, where it is alleged that foreign workers were given priority work status or more hours.  Also alleged are misrepresented application forms, though none of this has been proven in court.

Three McDonalds locations in Victoria, BC have been “blacklisted” by CIC, meaning they can no longer participate in the temporary foreign worker program.

There is no question that the government had to respond to these allegations as reported in the media.

However, placing a moratorium on the entire fast food sector seems extreme in the circumstances.  Many employers who rely on foreign workers will be hurt by this decision.

It may lead to some employers ceasing to operate, which means their Canadian employees (and their Canadian service providers – everyone from janitorial staff to accountants), will also lose business.

I have no idea whether the allegations against McDonalds are true or not.

However, I do know employers in the food sector, and they always say that it is very hard to find Canadians to work late shifts, especially at locations which are open 24 hours.  So although there may be Canadians available, filling late shifts or odd shifts is often difficult.

I hope the review is done quickly, and a more rational approach to the foreign worker program for the fast food sector is taken.

man at witness standHave you applied to Citizenship and Immigration Canada (CIC) and been refused?  Did you think the decision was unfair?

CIC Officers are bound by the rules and regulations laid out by the Canadian government.  They are following written procedures, including fairness guidelines.  When it comes to appealing a decision made by a CIC Officer, visa officer or the Immigration Division – you may be able appeal to the Immigration Appeal Division (IAD) which is one branch of the Immigration Refugee Board.

Who can appeal?

There are three different categories for appeals.

First if your family sponsorship application was refused, the sponsor may appeal the decision, if there are sufficient reasons to appeal.  The reasons for the appeal are also called “grounds for appeal.”

The second category is a removal order appeal.  If you received a departure order, exclusion order, or deportation order, it may be possible for you to appeal the removal order.  You must be a permanent resident, a foreign national with a PR visa, a protected person or a convention refugee to appeal such a decision.

The third category for appeal is a permanent resident who received a decision from overseas that they failed to comply with their residency obligation.  Permanent residents must ensure they spend 730 days (2 years) physically present in Canada within every 5 year period.

Grounds for appeal

There must be a satisfactory reason for the appeal to take place.

According to the rules in place there are three grounds for appeal:

1) an error in law or fact;

2) a principle of natural justice was not observed; or

3) there are sufficient humanitarian and compassionate reasons (usually involved best interests of a child/children) to overcome a negative decision.

Your appeal will not be heard at the IAD unless you have sufficient evidence to file under one of those grounds for appeal.

I will explore these grounds for appeal in more detail in future posts.

Who can not appeal?

An appeal can not be made if you have been found inadmissible due to serious criminality, organized criminality, espionage or violating human or international rights.

In addition, foreign nationals who have been denied a visa, work permit, or study permit may not appeal those decisions.

What about misrepresentation?

If you have been found to be inadmissible based on misrepresentation on your immigration application, you can only appeal to the IAD if you are a sponsor’s spouse, a sponsor’s common-law partner, or a sponsor’s child.

Deciding whether to appeal

A decision to appeal to the IAD should be considered carefully.  Time and expense must be taken into account.  The deadline to file the Notice of Appeal is typically within one month from receiving a decision in Canada or within two months if you live overseas.

If you fit into one of the three categories discussed above (sponsorship, residency obligation (for a decision made overseas) or a removal order), and you feel confident you have grounds for appeal, then contact an immigration lawyer to evaluate your case and help you through the process.  The IAD is a superior court of record and is adversarial by its nature – you should not likely appear unrepresented.