Learning Moments - Switching from Closed to Open Work Permit under Express Entry
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 arranged employment under Express Entry and switching from a closed to an open work permit following the submission of an application for permanent residence.
We have a client with a work permit based on a valid LMIA, which is due to expire on July 1st, 2019. She is interested in applying for permanent residence under the Canadian Experience Class and already received an Invitation to Apply through Express Entry. Our concern is that to meet the points under which she was invited, she needs an offer of arranged employment, which her current employer has extended to her. Our plan is to apply for permanent residence before the current work permit expires and subsequently extend her status by applying for a Bridging Open Work Permit.
Our question is whether changing her status from an LMIA work permit to an open work permit, the BOWP, will void the employer’s offer of arranged employment. We are concerned that if this is the case, she will no longer be eligible for the additional points for arranged employment and will no longer meet the points under which she was invited.
At the time of the application she will have an offer that meets all of the requirements of arranged employment and it will be made by the employer for which she holds an LMIA work permit. However, at the time her application is finished processing, she will continue to have status as a worker in Canada but under an open work permit. Is this going to be a problem? If that is the case, is the only solution to apply for a new LMIA and work permit?
I believe it is totally fine to do it as we plan, but we wanted to confirm.
Our reader’s analysis is correct, her client will be fine maintaining status as a worker through an application for a Bridging Open Work Permit (BOWP). Changing status to an open work permit will not void the offer of arranged employment and the points associated with that offer. This is as long as the offer continues to be valid throughout the processing of the permanent residence application and the client continues to work for the same employer under the position stipulated in the offer.
For an offer of arranged employment under Express Entry to be valid, it must meet all of the requirements listed under the Ministerial Instructions respecting the Express Entry system. These criteria are also discussed under IRCC’s Program Delivery Instructions regarding Offer of employment – Skilled immigrants (Express Entry).
Amongst those requirements, are the ones that the offer must be made by an employer who:
Sought a valid LMIA that has not expired;
Sought an LMIA which supported the work permit under which the employee is currently working under; OR
Is listed on the closed work permit of an employee who has been working for the employer (one year full-time or equivalent) and that work permit was issued under the authority of paragraph 204(a) or (c) or section 205 of the IRPR.
In short, an offer does not qualify for arranged employment if at the time of submission of the application the employee is under an open work permit, unless an LMIA has been sought in support of that specific offer and the LMIA is still valid. This means that in our reader’s case, it is imperative that the Canadian Experience Class application be made while the employee still has status under the closed work permit that is supported by the LMIA.
IRCC’s guidelines also provide that to be eligible to claim points for arranged employment, the applicant should also be “authorized to work in Canada” on the day she applies for the permanent resident visa, and when the visa is issued.
That being said, there is nothing preventing the client from applying for permanent residence under the scenario described by our reader and then maintaining status to work by applying for a BOWP, for which she is entitled. We have done this in many cases when our client’s closed work permit is expiring and, for practical purposes, it is easier to switch to a BOWP rather than extend their current work permit.
As mentioned above, the important thing is that the client continues to work in the same position and for the same employer as stipulated in the offer of arranged employment. Not doing so, could in fact jeopardize the validity of the offer and the Express Entry points associated with it.
Andrew Carvajal is a Toronto lawyer and partner at Desloges Law Group specializing in immigration law, administrative law and Small Claims Court litigation.