- By Andrew Carvajal
Learning Moments - T13 Work Permits
Hello fellow practitioners. Today's column deals with employer-specific work permits for provincial nominees under the LMIA exemption code T13.
Reader's question
I have a client who received an Ontario Immigrant Nominee Program (OINP) nomination certificate through the International Student category. His nomination is restricted to a particular employer in the province. I have the following questions:
Does he qualify for any type of work permit after he files his permanent residency application in the event that his post graduation work permit expires or is about to expire? I noticed that the IRCC website says that "if you applied under the Provincial Nominee Program, you must not have employment restrictions as conditions of your nomination". Is there any other avenue for him to continue working until the decision of the PR application is received?
Will it be an issue if the nomination certificate expired by the time that he applies for the work permit?
Answer
There are two types of work permits for which a client could apply by virtue of being a provincial nominee. One is a Bridging Open Work Permit (BOWP), which is available for permanent residence applicants with no employment restrictions. The other is an application for an employer-specific work permit under federal-provincial or territorial agreements pursuant to section R204(c) of the IRPR.
The Bridging Open Work Permit is an LMIA-exempt work permit available to clients who have applied for permanent residence under one of the following programs:
Federal Skilled Worker (FSW)
Canadian Experience Class (CEC)
Federal Skilled Trades (FST)
the caring for children class or the caring for people with high medical needs class; OR
the Provincial Nominee class (PNC), for applicants for whom there are no employer restrictions on nominations [emphasis added]
In addition to having submitted an application under these programs, which has been deemed to be "complete", the applicant for a BOWP must be currently in Canada and hold a valid work permit which is set to expire in the next four months.
Our reader's client is not eligible for this type of work permit because he has received a nomination under an employer-driven provincial stream. As a result, his certificate of nomination has employment restrictions.
The note that our reader pasted as part of the question relates to IRCC's Program Delivery Instructions for BOWPs. These clearly stipulate that a nomination with employment restrictions will not be eligible for this type of permit. This makes sense as a BOWP is a type of open work permit and the candidate was nominated by the province on the condition that he will be working for a particular employer in an approved occupation.
This is not to say that our reader's client does not have an option to work in Canada while he waits for the processing of his permanent residence application.
There is in fact a different work permit under the International Mobility Program designed for these employer-specific nominations. As discussed above, the authority for this permit is R204(c) under the federal-provincial or territorial agreements. This is also known by the LMIA exemption code T13.
IRCC's Program Delivery Instructions for this type of permit provide that:
"A person who has a valid nomination from a province or territory for permanent residence and is employed or has a job offer from an employer based in that province may be issued a work permit without requiring an LMIA". [1]
To be eligible, a client must provide a copy of the nomination certificate and a "statement from the province that it has determined that all factors required for the issuance of a work permit under paragraph R204(c) as per its agreement with Canada have been met, identifying the occupation and employer information".
While OINP's website indicates that Ontario is no longer providing letters in support of open work permits, they continue to support applications for work permits for candidates nominated under employer-driven streams. The notice from their website is as follows [emphasis added]: [2]
As of June 20, 2015: Due to Federal level changes to the issuance of temporary work permits, as of June 20th, 2015, OINP no longer has the authority to issue support letters for open work permits. This only applies to nominees in streams under the Human Capital Category and includes all streams that do not require a job offer.
To learn about your options for retaining legal status in Canada, see CIC's website for information about Bridging Open Work Permit eligibility requirements.
All Ontario nominees with a job offer may still qualify for a temporary work permit, and Ontario will continue to support temporary work permit applications of nominees. Please note that a provincial nomination does not guarantee approval of a temporary work permit application, as CIC is responsible for the issuance of temporary work permits.
As is the case of other LMIA-exempt work permits that are employer specific, this type of application requires that the client's employer submit an online Offer of Employment to a Foreign National Exempt from a Labour Market Impact Assessment. The employer must also pay the $230 compliance fee to IRCC.
To answer our reader's second question, the fact that the client's nomination certificate has expired is not an issue as long as he can provide an Acknowledgement of Receipt confirming that IRCC received a permanent residence application while the nomination was still valid.
Also important is the fact that unlike the BOWP, which requires that the applicant be in Canada and hold a valid work permit at the time of application, an applicant for a T13 work permit could be residing abroad and even apply after the expiration of the Post Graduation Work Permit.
The duration of the T13 work permit should be equivalent to the duration of the offer of employment. Where the offer of employment is for a permanent duration, the work permit will be issued for a maximum of two years.
Spouses of work permit holders who have been nominated for permanent residence by a province are also entitled to open work permits for the duration of the work permit of the principal applicant. This is irrespective of the skill level of the principal applicant's occupation, although in the case of OINP it will be NOC 0, A or B anyway given the nature of the province's programs.
[1] http://www.cic.gc.ca/english/resources/tools/temp/work/opinion/territories-provinces.asp
[2] http://www.ontarioimmigration.ca/en/pnp/OI_PNPNOMINEES.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
