New COVID-19 Policy Allows Certain Out-of-status Individuals to Restore their Status and Work

July 14, 2020 saw the introduction of yet another important policy from the Government of Canada to alleviate the impact of the Coronavirus disease (COVID-19) on the immigration status of those inside the country.

Under the Public Policy exempting certain out-of-status foreign nationals in Canada from immigration requirements: COVID-19 program delivery certain out of status individuals will be allowed to restore their status outside the traditional window provided by the immigration regulations. In addition, some individuals will be allowed to being work while their restoration application is processing.

The Policy was introduced since the government recognizes that COVID-19 has had an impact on the ability of temporary residents to provide complete applications to maintain their status in Canada, while others have lost their status as a result of being unable to find ways to return home during the pandemic.

Extension of Time to Apply for Restoration of Temporary Status

Under normal circumstances, individuals who lose their temporary status and are inside Canada can apply to restore their status within 90 days of having lost it. The new Policy has expanded the window to apply for restoration of temporary status significantly.

Former workers, students and visitors whose status expired after January 30, 2020 and who remained in Canada, will now have until December 31, 2020 to apply to restore their status, provided they still meet the requirements for the type of status and authorization that they are applying to restore.

Possibility to Work During the Processing of the Restoration Application

While immigration regulations provide that an individual can normally continue to work after the expiry of their work permit if they submitted an application to extend their status before the expiry of their previous permit (something called implied status), the possibility to work is gone once the temporary status as a worker is lost. This happens often in cases when an extension of status application is refused and the applicant has no other remedy than to apply to restore their status.

The new Policy allows certain individual to work after they submitted an application to restore their temporary status, something that they were completely prohibited from doing before. Those applying for restoration must meet certain requirements, however, to be able to enjoy the ability to work under the Policy.

The person applying for restoration must be a former work permit holder and must have been eligible to apply to restore their status as a worker. In addition, the applicant must:

• Have a job offer;

• Be eligible for and submit a restoration application in addition to a closed (employer-specific) work permit application that is supported by a Labour Market Impact Assessment (LMIA) or is a type of application that is LMIA-exempt;

• Have held a valid work permit in the 12 months preceding the date on which they submitted their application for restoration of temporary resident status;

• Intend to work for the employer and/or occupation specified in the LMIA or LMIA-exempt offer of employment included in their work permit application; and

• Notify Immigration, Refugees and Citizenship Canada (IRCC) of the application and eligibility under the Policy through the proper channel (IRCC Webform).

As per IRCC's Program Delivery Instructions, the following examples of interim work would qualify under the new Policy:

• The foreign national’s work permit expired on December 30, 2019, and they fell out of status. They submitted a restoration and work permit application on March 1, 2020 (within 90 days of losing status), and a decision is still pending on their application.

• The foreign national’s work permit expired on March 1, 2020, and they fell out of status. They submitted a restoration and work permit application on October 1, 2020 (under the public policy), and a decision is still pending on their work permit application.

Examples where the Policy would not apply include:

• The foreign national’s work permit expired on March 30, 2019, and they extended their stay in Canada as a visitor. In this case, the foreign national cannot benefit from the interim work authorization under this public policy as they do not meet the eligibility criteria (that is, they did not hold a work permit in the last 12 months).

• The foreign national is a work permit-exempt worker who is restoring their status and applying for a work permit with a job offer, but they did not hold a valid work permit in the 12 months preceding the date on which they submitted their application for restoration of temporary resident status.

It is important to note as well that subsection 200(3)(e) of the Immigration and Refugee Protection Regulations provides that an officer shall not issue a work or study permit to applicants who have engaged in unauthorized work or study while out of status in the 6 months preceding an application.

To read the government announcement regarding this new Policy click here. IRCC's Program Delivery Instructions can be found here.

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Andrew Carvajal is a Toronto lawyer, partner and Head of Economic Immigration at Desloges Law Group. He specializes in corporate immigration, temporary permits and all types of permanent residence applications for professionals and entrepreneurs.

Twitter: @CarvajalLaw

LinkedIn:linkedin.com/in/carvajalandrew

Email: acarvajal@desloges.ca

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