I have UK and S.African dual citizenship, and I am living in…

Hello,

Please see the original post on your other thread on this matter:

(recopied below for your reference).


Debra is substantially correct with respect to the Canadian immigration standpoint, however, I do have concerns about your indication that you've already filed your Canadian PR application. If this was based on your relationship to your fiancee, you will have problems with that application.


SHORT ANSWER:

• No, you cannot live in Canada indefinitely while working for a US employer remotely because your US status will be deemed abandoned for one of multiple reasons (discussed below).

• No, a temporary work visa would not be available immediately. It would take a few months to process.

• No, your Green Card would be denied once it is discovered that you have relocated to Canada.

DISCUSSION

I. Moving immediately to Canada:
Unfortunately, you would not be able to immediately move to Canada, you would need a valid work permit which would also require - in most cases - a qualifying job offer. Likewise, you could not work for the US-based employer remotely because you (a) would not have a legal status in Canada and (b) your H1B (and Green-Card application) would be deemed abandoned by USCIS.


II. Time to get a Canadian Work Permit:
Generally, the time required to process a Canadian work permit depends on the type of permit. Since the most likely type in your case is the Temporary Worker Visa, the process would take a few months from filing AND would likely require a labor market opinion to be completed by the employer.

III. Living out-of Country for personal reasons with a US Green-Card:
If you relocate to Canada DURING the Green Card application and USCIS finds out about a simultaneous Canadian application, you will most assuredly face some uncomfortable questions at the final interview with USCIS which could result in the Green Card being denied.

The greater problem with having a US Green Card while residing abroad, however, is the ambiguous nature of the US law with respect to "abandonment" of status. Unlike Canada, which sets out a “brightline” number for residency renewal (730 days physical residence within a 5 year period), the US maintains a fairly ambiguous set of guidelines and leaves it to USCIS officers to sort out.

You could be "deemed" to have abandoned your Permanent Residency IF either:

you physically stay outside the United States for more than 1 year (365 days) without having secured a re-entry permit prior to leaving,

do not file income tax returns in the United States (even though you would be taxable in Canada, you must still file the return),

if you have been outside of the United States for more than 6 months and something in your background changes such that you would be deemed inadmissible to apply as a Permanent Resident at that point (even though you were eligible when the status was initially granted),

There is a mistaken belief out there that if you merely travel back to the US within a given year you can maintain your status. This is simply not the case. You would need to continue residential ties with the United States (active bank accounts, credit cards, current driver's licenses, property ownership and taxes paid, etc.) to help disprove that you've abandoned the Permanent Residency.

Employment-based absences are permitted, but you would need to include letters from the employer evidencing the nature and length of the employment (presumably the employment would be of a temporary nature).

Similarly "family" or "personal" reasons are valid but they must be well documented. However, this usually envisions situations where one is abroad to care for ailing family members or something of that nature, not where they simply relocate and seek to immigrate to another country.


IV. Other Matters - Eligibility for Canadian Permanent Residency
You indicate that you’ve already filed your Canadian Permanent Residency application if this is based on your relationship with your Fiancee, this application will be denied by CIC once they begin reviewing it.

Canada does NOT offer a "fiancee" visa akin to the K-1 “Fiancee” Visa in the United States only spouses, common-law partners and conjugal partners could apply (which, for all intents and purposes means that only married persons could apply since "common-law" partners need to prove physical residence together for a period of time and "conjugal" partners need to prove actual impossibility not legal hurdles in meeting the common-law definition). Therefore, with respect to your present application, if it was based on your relationship to your Canadian-citizen fiancee, you should expect that CIC will deny the application unless you can establish that you both have already met the requirements as common-law partners. So you would need to re-apply after you are married. Only if your application is based on the Federal skilled-worker or some form of Provincial Nominee visa would it continue to process normally.


In short, I think you're likely to be deemed to have abandoned the Green Card within 6 months of its issuance (if it is not even denied in the first instance if you are already living/working in Canada prior to the application being approved). You will also likely need to re-apply for the Canadian PR status after you are married since an application prior to marriage will be denied after its worked through CIC's review unless it is based on another independent basis for immigration.

I highly recommend that you retain both a Canadian and US immigration lawyer or firm to help you balance these competing interests out and help you come up with a long-term immigration strategy.

Regards XXXXX XXXXX wishes.


Edited by D.A.Mesinschi, Esq. on 12/2/2010 at 2:23 PM EST