Learning Moments - Open Work Permit for in-Canada Spousal Sponsorship Applicants


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=029b9a7e-765e-4801-8e9b-0c43db2f331a

Hello fellow practitioners. Today's column deals with the Open Work Permit Pilot Program for in-Canada spousal sponsorship applicants.

Reader's question

I have a client who is here on a study permit which expires in January 2018. In October or November of this year she is going to apply for spousal sponsorship (common law partner) within Canada. Along with the permanent residence application, we will send an application for an open work permit.

As it is possible that we will not hear from IRCC before her current study permit expires, will she be out of status come January 2018 thus jeopardizing her permanent residence application?

Answer

Our reader's question deals with the Open Work Permit Pilot Program for inland spousal sponsorship applicants (hereafter the Pilot Program). The client in question can certainly apply for both permanent residence under the Spouse or Common-law Partner in Canada (SCLPC) class and an open work permit under the Pilot Program.

Contrary to what our reader fears, however, it does not matter if the client does not receive the open work permit by the time that her study permit expires. Should both applications be properly made within the timeframes stipulated by our reader, the client will maintain implied status as a temporary resident even if the open work permit is still being processed come January 2018.

This Pilot Program was instituted by the government on December 22, 2014 and it allows eligible applicants to be granted an open work permit while their application for permanent residence is being processed and prior to receiving an approval in principle in the application. The then one-year Pilot Program was extended in December 16, 2015 to another year and then again on December 7, 2016 until December 21, 2017.[1] While it is possible that it will be extended again, we advise our reader to make the required applications well before that deadline.

To be eligible for an open work permit under the Pilot Program, a client must:

  1. Be a spouse or common-law partner living in Canada who is being sponsored under the SCLPC class;

  2. Have valid temporary resident status (as a visitor, student or worker) at the time of application;

  3. Live at the same address as the sponsor; and

  4. Have submitted an open work permit application.

To make sure that the permit is processed properly, an immigration consultant/lawyer must submit two separate applications on the client's behalf. One will be the full inland spousal sponsorship application and the second will be a complete open work permit application. Both applications will be submitted together to the Case Processing Centre in Mississauga even though the work permit application will be forwarded to the Case Processing Centre in Vegreville for further processing. The processing of the work permit usually takes 3-4 months.

Without the accompanying in-Canada application to extend the status as a worker, the client would not be extending her temporary status in Canada. It is by virtue of this application (as an accompanying application to the SCLPC application) that the temporary status is maintained and the client is on implied status while that work permit is being processed. The SCLPC application on its own does not extend the temporary status of an applicant.

Due to the separate nature of these two applications, it is important that the immigration consultant/lawyer includes the separate fees for both applications (SCLPC and open work permit) and any supporting documentation for each application. This will results in some documents being copied twice as part of each separate application. The applications should also be assembled into separate packages.

We should also emphasize how important it is that both applications (the SCLPC application and work permit application) be complete upon submission. Should the sponsorship application or the work permit application be returned for incompleteness after the expiry of the study permit, it will mean that the client will lose her temporary status in Canada. While a client without status could still submit a SCLPC application due to IRCC's public policy, the client will no longer be eligible for an open work permit under the Pilot Program. Instead, she will have to wait for one to be issued once there is approval in principle under the permanent residence application.

Finally, it is worth noting that the applications described under this scenario will extend a client's status as a temporary resident in Canada but not her status as a student. If the reader's client intends to continue her studies during the processing of the SCLPC application, then she would have to file an in-Canada study permit application while the current study permit is valid. This is independent from the applications that we described above.

We should also point out that had the reader's client been authorized to work under section 186 of the regulations (if for example she were a full-time student at a College or University), she can only continue to work AFTER the completion of the studies and during the period of implied status IF she applied for a Post-Graduation Work Permit (PGWP). This is by virtue of subsection 186(w) and not the Pilot Project described in this column. If that is the case and the student is about to graduate or just graduated from a program that is eligible for a PGWP (of at least one year), then the best strategy may be to apply for the PGWP instead. That way the client will be able to commence full time work as soon as that application is submitted and her status as a worker will not be affected if the sponsorship application is deemed incomplete or if she were to end the relationship with the sponsor. Later on, if the PGWP is about to expire and the SCLPC is still being processed, there will be other avenues to extend the client's status in Canada.

If the client on a study permit is graduating from a program that is not eligible for a PGWP, then she should apply for an open work permit under the Pilot Program. In that case she cannot work under implied status (even if she was eligible to work under R186 while studying), but only once the work permit is issued.

[1] http://www.cic.gc.ca/english/department/media/notices/2016-12-07.asp

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 #Sponsorship #SCLPC

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