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  • By Andrew Carvajal

Learning Moments - Calculation of Canadian Work Experience


This article by Andrew Carvajal is part of the Immigration Education Alliance (IMEDA) weekly column titled "Learning Moments".

Hello fellow practitioners. Today’s column deals with the calculation of the one year of Canadian work experience following graduation from a Canadian school and experience gained while registered as a full-time student but on a scheduled break.

Reader’s question

I have a question regarding eligible work experience required for the Canadian Experience Class. As per IRPR 87.1(3)(a): “any period of employment during which the foreign national was engaged in full-time study shall not be included in calculating a period of work experience”. The IRCC website provides further details on this stating that “Any period of employment when the applicant was engaged in full-time study will not be included in calculating the period of qualifying work experience (e.g., work experience gained through co-op work permits, off-campus work permits while a full-time student and on-campus work permits)”.

My question is will work experience gained while the applicant was a registered student but during a regularly scheduled breaks (i.e. summer break) be counted towards the work experience under CEC? The same question would also apply to the period just after the student completed their studies (i.e. finished their final exams) but had yet to apply for the Post Graduation Work Permit.


Answer

We would answer both of our reader’s questions in the negative. It is our view that both scenarios involve situations whereby the applicant is still engaged in full-time study and, as a result, the work experience gained during that period is not eligible under the Canadian Experience Class (CEC). If the student in the second scenario has not only finished her/his studies but also officially graduated (i.e. received final marks or the formal written notification of program completion), then she/he is not allowed to work until an application for a Post-Graduation Work Permit is made and that work experience would be without authorization and not eligible under the CEC program.

Our reader has referred to the right provision in the Immigration and Refugee Protection Regulations dealing with the restrictions to the eligible work experience under the CEC. We will reproduce those below for ease of reference.

Subsection 87.1(3) of the IRPR provides that:

Application

(3) For the purposes of subsection (2),

(a) any period of employment during which the foreign national was engaged in full-time study shall not be included in calculating a period of work experience;

(b) any period of self-employment or unauthorized work shall not be included in calculating a period of work experience; and

(c) the foreign national must have had temporary resident status during their period of work experience.

The restriction that work experience must not coincide with full-time studies is not only relevant to the CEC program, but also to the points awarded for Canadian work experience under Express Entry’s Comprehensive Ranking System.

For example, section 15 of the Ministerial Instructions respecting the Express Entry system states the following restrictions with respect to assessing an Express Entry candidate’s “Canadian Work Experience”:[1]

Work experience — requirements

(7) For the purposes of this section,

(a) a period of employment during which the foreign national was engaged in full-time study is not to be included in calculating a period of work experience;

(b) a period of self-employment or unauthorized work is not to be included in calculating a period of work experience;

(c) the foreign national must have had temporary resident status during their period of work experience and any period of full-time study or training; and

(d) the full-time equivalent for part-time work experience is 30 hours of work per week.

The same restrictions apply to a candidate’s spouse’s Canadian work experience (section 19(8)), as well as to the transferability points assigned for Canadian work experience (section 24(3)).

In our view, the word “engaged” should not be given such a narrow interpretation so that it would only capture students currently attending class and not those on scheduled breaks. Rather, we are of the view that if the student is still enrolled or registered in full-time studies (despite being on vacation), their work is still not eligible under the CEC.

This interpretation is consistent with various statements made by IRCC throughout the Canadian government website. One example is the posted guidelines regarding “Eligibility to apply for the Canadian Experience Class (Express Entry)”. There, the government uses the more broad interpretation of the word “engaged” to mean any work experience gained while the applicant was a full-time student:[2]

Self-employment and work experience gained while you were a full-time student (such as a co-op work term) doesn’t count under this program.

To answer our reader’s second question, a person starts accumulating eligible Canadian work experience in that scenario as soon as they apply for the Post-Graduation Work Permit (PGWP). While the person is still writing exams and prior to receiving the final marks or the formal written notification of program completion, they continue to be registered as a student. Though full-time college/university students have an authorization to work certain hours while they continue to be registered as students, their work is still excluded from CEC eligibility.

This is a different situation from that of a student who wrote the exams and has received the final marks or official confirmation of program completion. As we have written in prior IMEDA columns, once this happens the person is no longer a registered student and loses the ability to work without a work permit as a student (i.e. subsections 186(f) and (v) of the IRPR).[3] In order to continue working, it is imperative that the person applies for the PGWP as soon as they have officially completed the academic program requirements. Once they do, they can work with no restriction in their hours while they wait for the processing of the PGWP application. This is provided by section 186(w) of the IRPR. As a person who has already graduated and applied for the PGWP is no longer a student, they can start accumulating Canadian work experience recognized under the CEC program. The experience will also be eligible for Express Entry points.

If the situation presented by our reader in their second question is one of a student who has formally completed their program of studies and not applied for the PGWP, then the work experience gained during that period will not be eligible under the CEC for a different reason – mainly that it is not authorized work experience. There are variations in situations when a student has graduated from a program and will be commencing a different program within 150 days, during which time they are allowed to continue working.[4] In that very specific scenario, a case could be made that the experience may be eligible under CEC, as the individual is authorized to work and no longer registered as a student.

[1] https://www.canada.ca/en/immigration-refugees-citizenship/corporate/mandate/policies-operational-instructions-agreements/ministerial-instructions/express-entry-application-management-system.html

[2] https://www.canada.ca/en/immigration-refugees-citizenship/services/immigrate-canada/express-entry/eligibility/canadian-experience-class.html

[3] See https://www.canada.ca/en/immigration-refugees-citizenship/corporate/publications-manuals/operational-bulletins-manuals/temporary-residents/study-permits/campus-work.html

[4] See Ibid.


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 #CanadianExperienceClass #PermanentResidence

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© 2020 by Andrew Carvajal