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  • By Andrew Carvajal

Learning Moments - Bridging Open Work Permits at the Canadian Port of Entry


This article by Andrew Carvajal is part of the Immigration Education Alliance (IMEDA) weekly column titled "Learning Moments" and published online http://campaign.r20.constantcontact.com/render?m=1111379240993&ca=0e9afc86-e8b0-46ff-99d1-681032ab5636

Hello fellow practitioners. Today's column deals with applications for a Bridging Open Work Permit at the Canadian port of entry.

Reader's question

A non-TRV foreign national who applied for permanent residence as a provincial nominee received a R-10 letter and has applied for a Bridging Open Work Permit (BOWP). He now has implied status, as his work permit expired. However, prior to receiving his BOWP, he is supposed to be a groomsman in a wedding in the USA, as well as attend a work conference.

Is it possible to receive a BOWP at the port of entry in order to avoid losing status as a worker upon re-entry?

Answer

This is a tricky situation and one where we would recommend our readers be cautious and advise their clients accordingly.

While foreign nationals who do not require a Temporary Resident Visa can apply for most work permits at a Canadian port of entry, immigration officers are not authorized to issue Bridging Open Work Permits upon entering Canada. This is explicitly stated in the IRCC Program Delivery Instructions regarding "Bridging open work permits for certain federal economic class applicants" [emphasis added]:[1]

The following foreign nationals do not qualify for a BOWP:

  • foreign nationals in Canada under section 186 of the Immigration and Refugee Protection Regulations (IRPR), who are exempt from the work permit requirement;

  • foreign nationals who have let their status expire and must apply for restoration in order to return to temporary resident status;

  • foreign nationals whose work permits are valid for longer than four months or who already have a new LMIA that can be used as the basis for a new work permit application;

  • foreign nationals applying for a BOWP at a port of entry or visa office;

  • spouses and dependants of principal permanent resident applicants; and

  • foreign nationals who are inadmissible to Canada.

This restriction is also addressed in the requirements listed for a BOWP by IRCC, which include [emphasis added]:[2]

You may be eligible for a bridging open work permit if:

  • you applied for permanent residence

  • your current work permit expires in 4 months or less

  • you have valid status on your work permit

  • you are currently in Canada

As a result, a BOWP application should be processed as an application to extend status as a worker within Canada.

There are practical considerations for why port of entry officers cannot issue BOWPs. This has to do with the fact that these permits are only issued once an immigration officer has had the opportunity to review the applicant's accompanying permanent residence application and confirm that it is "complete".

While our reader is describing the situation of a client who submitted a paper permanent residence application and has received confirmation that the applications is complete (by means of a R10 letter), we believe that it is risky to advise that he will be able to obtain the BOWP upon re-entering Canada. There is also the fact that once the applicant re-enters Canada, his work permit would already be expired, which technically makes him not eligible to apply for a BOWP.

As a result, we would caution someone in a similar situation that they will not be able to apply for a BOWP upon coming back to Canada. If they are to leave the country, they will lose their implied status and may not be able to work until their BOWP arrives. It will then be up to the client to decide if the nature of their trip is worth the risk that they will have to wait for their permit to be issued in order to resume work, should the officer only let them in as a visitor upon re-entering Canada.

We have also had situations when an applicant leaves on a short trip and their new permit arrives while they are away. In that case, the permit can be couriered to them and they will be able to enter Canada with the new permit and continue working as soon as they are back.

It should be noted that our suggestion is also consistent with IRCC's Program Delivery Instructions regarding "Temporary resident: Implied status (extending a stay)".[3] These provide that while a temporary resident with implied status who has left Canada may be allowed to re-enter Canada as a temporary resident, they "may not resume work or study in Canada until their application for renewal has been granted". The instructions also provide that applicants who left while on implied status may "apply for a new work or study permit at the port of entry (POE), provided they have a right to do so under the IRPR". It is our position that applicants do not have the right to apply for the BOWP at the port of entry, unlike other work permits.

We have certainly heard stories from immigration practitioners and applicants who have been able to obtain a BOWP at the Canadian port of entry. Officers can be inconsistent at times. However, such anecdotal evidence is not sufficient to recommend a client to apply for something that is against immigration guidelines.

[1] https://www.canada.ca/en/immigration-refugees-citizenship/corporate/publications-manuals/operational-bulletins-manuals/temporary-residents/foreign-workers/provincial-nominees-permanent-resident-applicants/bridging-open-work-permits.html

[2] https://www.canada.ca/en/immigration-refugees-citizenship/services/work-canada/extend-permit/bridging-open-work-permit.html

[3] https://www.canada.ca/en/immigration-refugees-citizenship/corporate/publications-manuals/operational-bulletins-manuals/temporary-residents/visitors/implied-status-extending-stay.html

Andrew Carvajal is a Toronto lawyer and partner at Desloges Law Group specializing in immigration law, administrative law and Small Claims Court litigation.

Twitter: @CarvajalLaw

Email: acarvajal@desloges.ca

#Immigration #WorkPermit #LMIAExemption #BridgingOpenWorkPermit

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© 2020 by Andrew Carvajal