Learning Moments - Applications for Work Permits after IEC
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=4fb81eab-05e4-4fb9-bf05-9c3f7e8e101c
Hello fellow practitioners. Today's column deals with the circumstances when an individual under an International Experience Canada work permit can apply for a new work permit within Canada.
I was consulted by a Chilean engineer who is in Canada on a Working Holiday work permit. Her current employer is very happy with her performance and wants to extend an offer in support of an application for a work permit under the Canada-Chile Free Trade Agreement.
I am not entirely sure whether this person can apply for the work permit within Canada and continue to work while on implied status during the processing of the application. I have heard in the past that if the client has a Working Holiday permit, they need to apply overseas for a new work permit. I would appreciate if you could clarify this.
It is true that those under an International Experience Canada (IEC) work permit cannot apply to extend their status as a worker in Canada under certain circumstances. This, however, has to do with situations when an individual wishes to reapply for a subsequent IEC work permit, should their country's IEC program allow them to. On the other hand, should the individual be applying for a new work permit outside the IEC program and be eligible for processing within Canada, they will be able to make that application and continue to work under implied status.
By way of background, IEC provides youth from 33 countries with the opportunity to travel and work in Canada. Participating ages are within 18 and 30 years or 18 and 35 years depending on the country of nationality. Also depending on the citizenship of the individual, they may choose to participate in one of three possible categories under IEC: 1) the Working Holiday Visa; 2) the Young Professionals program; and 3) the International Co-Op Internship program. The first program consists of an open work permit, while the other two involve employer-specific work permits.
Some of the participating countries have reciprocal agreements with Canada that allow for IEC applicants to be involved in the program twice (even under the same category). Chilean nationals are an example of those who are allowed to do this. Other agreements allow IEC participants to be involved in the program twice but not under the same category. An example of such agreement is the one with Germany.
When an IEC program allows a person to submit a second application for an IEC work permit, it is necessary that the applicant leave Canada and apply abroad for the new work permit. This is called a discontinuancerequirement and it is built into the bilateral agreements between Canada and the other participating countries.
As a result, each participation in IEC is separate from a previous one and all applications for IEC work permits are considered to be overseas work permit applications. The application itself must also follow an invitation to apply through an online pool of interested candidates.
If our reader's Chilean client wanted to switch from one IEC work permit to a brand new one, she would not be able to do so by submitting an application to extend her stay as a worker within Canada. She would instead have to enter the pool of IEC participants again and apply for a new overseas work permit.
This is a different situation from when an IEC work permit holder wishes to switch to a new work permit that is supported by a Labour Market Impact Assessment (LMIA) or an LMIA-exempt work permit that is not under the IEC program. In that case, an application to extend a person's stay as a worker in Canada is permissible.
This is discussed in the IRCC website and guidelines labeled "Extend or change your work permit - International Experience Canada". There, IRCC specifically provides that an individual may apply to remain as a worker within Canada for "another type of work permit".
As is the case with all other in-Canada applications for an extension of status as a worker, the foreign national must apply for a renewal of their work permit before their work permit expires. This will allow for the individual to remain on implied status during the processing of the application pursuant to section 186(u) of the Immigration and Refugee Protection Regulations.
It is important to remind clients that in order to be able to continue working without a work permit they must continue to comply with the conditions set out on the expired work permit and remain in Canada during the processing of the new permit. If, for example, the client is switching from an employer-specific IEC work permit to a work permit supported by an LMIA with a new employer, they will have to continue working for the employer listed in the original work permit until a new work permit is issued.
The case described by our reader, a Chilean national who is switching from an open Working Holiday work permit to a Canada-Chile FTA work permit, is certainly one where she can apply within Canada and continue to work for her current employer while waiting for the processing of the new application.
Finally, although unrelated to our reader's question, it is worth mentioning that there are also very limited circumstances whereby an individual can in fact switch from an IEC work permit to a new IEC permit within Canada. These, however, comprise of situations whereby the original duration of the first IEC entry has not been reached and the participant is extending a contract, changing employers, fixing an error on the permit, extending the permit due a new passport expiry date, among other scenarios. None of these scenarios involve the situation when a participant wants to start a new IEC experience, whereby an overseas application is necessary.
Andrew Carvajal is a Toronto lawyer and partner at Desloges Law Group specializing in immigration law, administrative law and Small Claims Court litigation.