Learning Moments - COVID-19 policies for Restoration of Temporary Status
This article by Ivania Botero is part of the Immigration Education Alliance (IMEDA) weekly column titled "Learning Moments".
Hello fellow practitioners. Today’s column deals with COVID-19 policies for restoration of temporary status and applications for a work permit within Canada while on visitor status.
I have several clients who fell out of status last year due to refused work permit extension applications and therefore submitted restoration applications to switch their status to visitors in late December in order to comply with the December 31st deadline of IRCC’s COVID-19 policy. However, IRCC extended this policy and foreign nationals can now restore their status until August 31, 2021.
I am wondering, if a foreign national is now eligible to apply to restore their status as a worker under the extended COVID-19 public policy (after receiving an LMIA, for example), can they do so whilst awaiting the outcome of the visitor restoration application that was already submitted? This would be done to allow the work permit to be issued to the applicant in Canada and be eligible for the interim authorization to return to work whilst the work permit is being processed.
There is nothing that bars a foreign national with an ongoing application to restore their status as a visitor to submit a new application to restore their status as a worker. This is assuming that they meet all the requirements of the applicable program and the IRCC COVID-19 public policy.
Our recommendation in our reader’s scenario, however, would be to withdraw the visitor restoration application, if it is still being processed, and submit a new restoration application in support of a work permit instead. Even though the policy does not prohibit the processing of two concurrent restoration applications, if the client’s status is restored to that of a visitor by the first application, then they are no longer eligible for restoration of status as a worker through the second application, making that application moot.
If the restoration to visitor status is approved before the client had an opportunity to submit a new application to restore status as a worker, then there is another COVID-19 public policy that can be used to apply for the work permit.
The Public policy exempting certain visitors in Canada from immigration requirements: COVID-19 program delivery came into effect on August 24, 2020 and it allows certain visitors in Canada to apply for a work permit inside Canada, contrary to the normal rules under section 199 of the Immigration and Refugee Protection Regulations.
To apply for an employer-specific work permit within Canada while on visitor status, an eligible foreign national must:
· Be in Canada with valid temporary resident status as a visitor, including status extensions under subsection 183(5) of the Immigration and Refugee Protection Regulations, that is, implied status;
· Have been physically in Canada on August 24, 2020 and remained in Canada since; and
· Be submitting a work permit application in Canada for an employer-specific work permit.
This public policy also allows eligible foreign nationals with a valid visitor status to obtain an interim work authorization while a decision on their work permit application is pending. However, this is limited to those who held a work permit within the 12 months prior to applying for the work permit under the COVID-19 policy.
This temporary public policy will remain in effect until March 31, 2021, so the applications expected to benefit from it must be submitted on or before this date.
To summarize, there is nothing that prevents a client in the situation described by our reader from having two concurrent restoration applications. However, due to practical considerations, if the client is now eligible to restore their status as a worker, it would make sense to withdraw the visitor restoration application and leave the worker restoration application processing. While this restoration application processes, the client may apply for an interim work authorization if they meet all the requirements under the policy.
If it is too late to apply to restore status as a worker because the visitor restoration application has already been approved, then the client can still apply for an employer-specific work permit inside Canada under the applicable COVID-19 public policy. That policy also allows for an interim work authorization for those who had a work permit within the last 12 months but are now under visitor status.
Ivania Botero is a Colombian lawyer and part of the DLG LATAM Team. In addition to assisting our Canadian Economic Immigration Group, she specializes in in Colombian immigration, labour and corporate commercial matters.