MILLER THOMSON Barristers & Solicitors Patent & Trade-Mark Agents VANCOUVER
TORONTO
CALGARY
LLP
Robson Court 1000-840 Howe Street Vancouver, BC Canada V6Z 2M1 Tel. 604.687.2242 Fax. 604.643.1200 www.millerthomson.com
EDMONTON
LONDON
KITCHENER-WATERLOO
GUELPH
MARKHAM
MONTRÉAL
Work Permit Logistics Phebe Chan Continuing Legal Education Society of BC Working Your Way Into Canada 2009 September 16, 2009
This paper is provided as an information service only and is not meant as legal advice. Readers are cautioned not to act on the information provided without seeking specific legal advice with respect to their unique circumstances. © Miller Thomson LLP 2009. All Rights Reserved. All Intellectual Property Rights including copyright in this publication are owned by Miller Thomson LLP. This publication may be reproduced and distributed in its entirety provided no alterations are made to the form or content. Any other form of reproduction or distribution requires the prior written consent of Miller Thomson LLP which may be obtained by contacting
[email protected]
\\vanfil4\dept\common\marketing\Templates\Word Templates\Articles_Coverpage_Vancouver.DOC
WORK PERMIT LOGISTICS Continuing Legal Education Conference (September 16, 2009) Working Your Way into Canada 2009 Phebe Chan, B.Comm., LL.B. The purpose of this paper is to provide an overview of the logistical issues that may arise in the context of work permit applications, and to provide a commentary regarding the relevant sections of the Immigration and Refugee Protection Act (“IRPA”) and its corresponding Immigration Refugee Protection Regulations (“Regs”) as well as any applicable Policies regarding the same. The issues discussed in this paper are as follows: 1.
Work Permit Basics
2.
When and where should the work permit application be made? (a)
Temporary Resident Visa (“TRV”) requirements
(b)
Other Considerations
3.
Applying “Before Entry” at a Visa Office Abroad
4.
Applying “After Entry” through Inland Processing
5.
Applying “On Entry” at a Port of Entry (“POE”) and Flagpole Applications (a)
Preparing clients for a POE application
(b)
Unique Applications at the POE
(c)
What to bring to a POE application
6.
Documents to submit for a Work Permit application
7.
What will the visa, CBSA, or CPC-Vegreville officer consider?
8.
Issuance of Work Permits (a)
Unique Issues
9.
Refusal of Work Permits
10.
Work Permit Extensions, Changes, or Renewals
11.
Implied Status
12.
Restoration of Status
13.
Concurrent Processing of LMO and Work Permit
14.
Open Work Permits for Spouses or Common-Law Partners or Dependants
3780884.8
–2– 1.
Work Permit Basics.
Section 30 and Regs 8, 194, 195 and 196 of the IRPA set out the basics regarding the need for a foreign national to obtain a work permit if working in Canada. 2.
When or where should the work permit application be made?
The relevant provisions regarding when (and therefore where) to apply for a work permit are in Division 2 of Part 11 of the Regs, R197 (before entry), R198 (on entry) and R199 (after entry). The logistics of these three options, as well as their advantages and disadvantages, will be discussed later in this paper. A more crucial question in the early stages of work permit application logistics, is “Does the applicant require a Temporary Resident Visa to enter Canada?” (a)
Temporary Resident Visa (“TRV”) requirements
IRPA s. 11(1). s. 20(1)(b), s.22(1), 29(1)(2) and s. 41(a) provide the framework regarding entering and remaining in Canada, and R7 of the IRPA states that a foreign national must first obtain a TRV before entering Canada unless the foreign national: (a) is exempt under Division 5 of Part 9 from the requirement to have a temporary resident visa; (b) holds a temporary resident permit issued under subsection 24(1) of the IRPA; or (c) is authorized under the IRPA or these Regs to re-enter Canada to remain in Canada. R190(1),(2), and (3) in Division 5 of Part 9 of the IRPA provides a list of countries whose citizens do not require a TRV to enter Canada. If the foreign national applying for the work permit does not fall under any of the exemptions in R7(2) or R190, it is highly likely that a TRV is required for that work permit applicant. In most cases, if a work permit applicant requires a TRV prior to entering Canada and they are not in Canada at the time of the adjudication of their work permit application, their work permit application cannot be made on entry to Canada or after entry to Canada through inland processing; instead, the application must be submitted to a visa office abroad. R179 and R180 prescribe the criteria to be established and proven prior to issuance of a TRV to a foreign national. The Regs concerning general, imposed, and specific conditions for TRVs are R183, R184, and R185. The fee for a single entry TRV is $75 (per R296(1) unless (2) applies) and the fee for a multiple entry TRV is $150 (per R297(1) unless (1.1) applies). Both types of TRVs have a maximum fee of $400 for applicants and family members (per R296(3) and R297(3)). A few additional notes about TRVs:
3780884.8
(b)
For some countries, it can be difficult to get a multiple entry visa.
(c)
R190(3)(f) addresses an interesting situation where a TRV is not required with respect to extensions:
–3– A foreign national does not require a TRV if they are seeking to enter and remain in Canada solely to re-enter Canada following a visit solely to the United States or St. Pierre and Miquelon, if they (i) held a study permit or a work permit that was issued before they left Canada on such a visit or were authorized to enter and remain in Canada as a temporary resident, and (ii) return to Canada by the end of the period initially authorized for their stay or any extension to it.
(d)
Effective January 1, 2009, citizens of Poland and Lithuania will be required to obtain an e-passport in order to travel to Canada without a TRV. For more details, see the Citizenship and Immigration Canada (CIC) notice at http://www.cic.gc.ca/english/department/media/notices/notice-poland.asp.
(e)
Effective March 29, 2009, citizens of Croatia are exempt from requiring a TRV to travel to Canada. For more details, see Operational Bulletin 106 – March 30, 2009.
(f)
Effective July 14, 2009, citizens of Mexico and the Czech Republic now require a TRV in order to enter Canada. An Order in Council amended R190(1)(a) to remove Mexico and the Czech Republic from the list of countries whose nationals are exempt from the requirement to obtain a TRV prior to travel to Canada. For more details, see Operational Bulletin 128 – July 13, 2009 and Operational Bulletin 129 – July 13, 2009.
(g)
The Transit Without Visa (“TWOV”) pilot program at Vancouver International Airport is expected to be formalized into a national program. The TWOV Program applies only to nationals of the following four countries: Indonesia, the Philippines, Taiwan, Thailand and (on a trial basis) China. The national TWOV Program, like the pilot, will allow certain foreign nationals with valid United States visas, travelling to and from the United States, to transit Canada without a Canadian visa. For more details, see Operational Bulletin 142 – July 30, 2009.
(b)
Other Considerations
Additional factors which may affect your choice of where to submit the work permit application include, but are not limited to:
3780884.8
(a)
Whether or not they are a citizen of or have been legally admitted to the country where they will be making the application
(b)
Litigation rights (although few work permit decisions are challenged)
(c)
How quickly the work permit is required by the principle applicant and/or spouse/common-law/dependant
(d)
Whether there are plans to move from the current country of residence to Canada immediately or whether such plans are contingent on the issuance of the work permit
(e)
The number of applicants who may be applying for work permits at the same time (ie. would it be a burden on the POE to process many at once? If so, it may be helpful to call ahead to the POE).
–4– (f)
Your client’s comfort level. Some prospective foreign workers find the process of applying for a work permit at the POE very intimidating. They may also not want to uproot their lives and travel to Canada without the security of a work permit in hand. In this case they may wish to submit the application at a visa office outside of Canada, even if the applicant is from a visa waiver country.
(g)
Inadmissibility Concerns (i)
Medical Inadmissibility –
Find out upfront if the applicant or their family members have any medical issues which might make them medically inadmissible to Canada. For more information, see IRPA s.16(2)(b), R30-35, 38(1), and Section 9 of the FWM. R198(2)(b) states that, in order to apply for a work permit on entry, a person hold a medical certificate, if they require one under subsection 30(4). Work permit applicants who have resided or sojourned for six or more consecutive months in a designated country/territory in the one year immediately preceding the date of seeking entry to Canada are required to undergo a medical exam. This means that even if they are from a visa waiver country, the fact that they need a medical means they are not eligible to apply for their work permit at the port of entry; instead, they must apply at a visa office. R198(2)(b) does not apply to foreign nationals who will be working in Canada for less than six months (and are not employed in a designated occupation for which a medical examination is required). A word of caution though: section 9.4 of the Foreign Worker Manual states that this provision should not be used to circumvent the requirement to apply for a medical examination at a visa office prior to arrival. Thus, you should have sound reasoning for bringing an applicant in for such a short period of time though. Once the applicant is in Canada, the foreign national may apply to extend the work permit through the inland Case Processing Centre in Vegreville, Alberta. Vegreville may or may not then ask the applicant to undergo a medical exam. As long as you ensure that you apply to extend the work permit in advance of the expiry of the initial work permit, then the applicant can continue working until such time as a decision is rendered on the application. Whether or not a medical can be done in advance of applying for a work permit depends on the particular policy of each visa office. Even if it is possible, in practice I seldom have people applying for the medicals before they submit their work permit applications. The reason for this is that when they do the medical ahead of time they have been not yet been assigned a file number so when the medical results are sent back to the visa office, there is opportunity for the results to go astray. I generally advise people that medical exams typically take between one and three months depending on the visa post. Not all the visa offices state medical processing times on their websites (ie. it seems that India is taking about two weeks and the United States is taking about one month). Some visa posts will allow medicals ahead of time. Generally though, most visa posts though will instruct applicants as follows: "Upon reception of your application, you will be issued a medical form with precise instructions on how to proceed. Do not go for a medical examination until after you receive the official medical form from our office. (ii)
Criminal Inadmissibility
If your client has potential criminal inadmissibility, CIC also encourages work permits to be applied for at a visa office abroad. However, consulates do not have access to FBI or CPIC and therefore, your client will be required to obtain these records for the consulate. CBSA officers have access to FBI and CPIC
3780884.8
–5– records. As the processing times for FBI or CPIC records can be long, it does not hurt to ask CBSA officers at POEs if they will consider adjudicating both criminal rehabilitation applications and work permit applications for clients, that is, if the criminal acts only occurred in the United States and/or Canada. (In my experience, the Douglas and Pacific Highway CBSA officers have granted a criminal rehabilitation (involving non-serious criminality) and a work permit application on a same day basis, whereas the Vancouver International Airport CBSA officers have turned clients away or asked clients to leave the applications for the CBSA’s later review.) 3.
Applying “Before Entry” at a Visa Office Abroad
R197 allows for submission of work permit application at any time before entering Canada at the visa office closest to the foreign national’s country of citizenship, or the visa office closest to where the foreign national had been lawfully admitted. Benefits: (a)
You can control the evidence and arguments the applicant provides in the initial application (although there may be an interview requested by the visa office).
(b)
The work permit applicant does not have to leave their country to visit Canada (ie: plan to move with their family, employer relocation costs, etc.)
(c)
If the work permit application is refused, the impact on the applicant is less than the impact on an application at the POE (ie. the applicant does not need to be “returned” to their home country, which saves on costs and headache!)
(d)
Since the communication with the visa office is mostly written, you should have good documentation of decisions, requests, agreements, and little room for miscommunication.
Disadvantages: (a)
The applicant bears the burden of establishing the merits of the TRV and work permit application, however, there is usually no opportunity for dialogue with the decision maker overseas (unless the visa office provides you with an opportunity to disabuse him/her of any concerns or unless an interview is requested by the visa office).
(b)
The processing time is longer than at a POE, and unless a matter can be proven as urgent, there is no way to expedite processing at a visa office.
(c)
It is often difficult to get a “real voice” at a visa office.
A factor which may cut on both sides is the visa officer’s ability to evaluate the cultural and economic benefits of the applicant’s prospective employment. It is important to research the visa office’s website, and obtain the visa office specific guides online. For instance, some visa offices allow for same day processing, while others schedule appointments, and others only accept mailed applications. In addition, documentary evidence required for TRVs and work permits will vary according to each visa office. Other visa offices have specific forms to be submitted along with applications.
3780884.8
–6– Typically, the application form, IMM1295, “Application for Work Permit” is required for work permit applications outside Canada. The fees should be paid at the time of the application pursuant to R.296 and R.297. Once approved, the visa office will issue an approval letter which allows your client to present the letter for the issuing of the work permit at a POE pursuant to R199 (g). 4.
Applying “After Entry” through Inland Processing
R199 allows foreign nationals to submit applications after entering Canada if they: (a)
hold a work permit;
(b)
are working in Canada under the authority of section 186 and are not a business visitor within the meaning of section 187;
(c)
hold a study permit;
(d)
hold a temporary resident permit issued under subsection 24(1) of the IRPA that is valid for at least six months;
(e)
are a family member of a person described in any of paragraphs (a) to (d);
(f)
are in a situation described in section 206 or 207;
(g)
applied for a work permit before entering Canada and the application was approved in writing but they have not been issued the permit;
(h)
are applying as a trader or investor, intra-company transferee or professional, as described in Section B, C or D of Annex 1603 of the Agreement, within the meaning of subsection 2(1) of the North American Free Trade Agreement Implementation Act, and their country of citizenship — being a country party to that Agreement — grants to Canadian citizens who submit a similar application within that country treatment equivalent to that accorded by Canada to citizens of that country who submit an application within Canada, including treatment in respect of an authorization for multiple entries based on a single application; or
(i)
hold a written statement from the Department of Foreign Affairs and International Trade stating that it has no objection to the foreign national working at a foreign mission in Canada.
Note that R199(h) creates a whole category of foreign nationals who can apply after entry. In the past, this has been used successfully to support Mexican business visitor’s to apply inland. I am not personally aware of any other applications for this subsection of the Regs. In addition to the above prescribed categories, other unique cases which should arguably be allowed under R199 include applicants currently under implied status under R186(u), Refugee claimants, Live-in Caregivers, Persons subject to unenforceable removal orders, Protected persons, and Persons with Humanitarian and Compassionate Reasons. Benefits:
3780884.8
(a)
Your client will be able to remain in Canada, saving them time and money,
(b)
There is no need for applying to the visa office abroad. Thus, processing time can be shorter.
–7– (c)
If it is an application to extend a current work permit which is submitted prior to the expiry of the applicant’s current work permit, even if that current work permit expires while the application is in progress, the foreign national can continue to work under implied status until such time as a decision is rendered on their new application.
Disadvantages: (a)
If refused, the applicant will usually be required to leave Canada.
(b)
Processing times can be lengthy (currently it takes approximately 90 day to process a work permit renewal when the employer is not changing).
An application form, IMM1249, “Application to Change Conditions, Extend My Stay or Remain in Canada is required for work permit applications inside Canada. This application is submitted to the inland Case Processing Center in Vegreville, Alberta. 5.
Applying “On Entry” at a Port of Entry
For foreign nationals exempt under Division 5 of Part 9 of the Regs from the requirement to obtain a TRV, ss. 26 and 27 of IRPA and R198(1) allow applications at the POE unless the exceptions at 198(2) apply regarding: generally, the requirement of a LMO, the requirement of a medical certificate, or various circumstances involving international youth exchange programs. Flagpole Applications at Land Border Crossings Foreign nationals who do not require a visa to enter Canada are generally able to attend at a land border crossing for a “flagpole” turnaround application, where the applicant would ask to enter the United States only for the purpose of re-entering Canada to make an application to the CBSA at the Canadian POE. In addition, foreign nationals who do require a TRV to enter Canada have the ability to apply at the POE under a “flag-pole” turnaround application if they already have valid status in Canada (ie. a TRV) at the time of the flagpole application. To do this, cite: R198(1) and R190(3)(f)(ii) and/or the CBSA memorandum dated March 8, 2007: According to R198(1), a foreign national may apply for a work permit when entering Canada if the foreign national is exempt from the requirement to obtain a TRV. (Note that per R198(2)(a)(ii), a foreign national may not apply for a work permit when entering Canada if a determination under section 203 is required, unless the foreign national is a national or permanent resident of the United States or is a resident of Greenland or St. Pierre and Miquelon.) According to R190(3)(f)(ii), a foreign national does not require a TRV if they are seeking to enter and remain in Canada solely to re-enter Canada following a visit solely to the United States or St. Pierre and Miquelon, if they return to Canada by the end of the period initially authorized for their stay or any extension to it. According to the memorandum, R190(3) and R198(1) allow for a foreign national to apply for the first and subsequent work permit at a POE as long as the foreign national has been initially authorized to enter Canada as a temporary resident and returns to Canada from the United States or is a resident of Greenland or St. Pierre and Miquelon by the end of the period initially authorized for their stay and any extension to it.
Before re-entering Canada, the foreign national will be interviewed by a Customs and Border Protection (“CBP”) officer from the Unites States Department of Homeland Security. If a foreign national requires a
3780884.8
–8– nonimmigrant visa to enter the United States, but they entered Canada for 6 months as a visa-exempt foreign national or with a TRV before for admission to the United States, they should still be able to “flagpole”. However, it is important to ensure that the United States Department of Homeland Security’s Customs and Border Protection officials at that particular POE has a similar view. Some CBP officers are willing to allow nonimmigrant-visa-requiring foreign national entry to the United States for the purposes of doing a “flagpole”. Other CBP officers view any entry to the United States as an application and will deny entry to any foreign national requesting a “flagpole”, in particular, applicants requiring a nonimmigrant visa to enter the United States. The CBP officer has the final discretionary power as to whether the applicant is allowed into the United States. Once the applicant requests a flagpole application, the CBP officer will either allow entry or provide a white card from US Immigration confirming that they applied at the POE and were denied entry. Then the applicant will proceed to the Canadian POE to submit their work permit application. Please take note that the CBP officer may leave a notation in their database regarding the denied entry, which may cause referrals to secondary inspection in the future. Otherwise, the CBP may take the view that the nonimmigrant-visa-requiring foreign national is subject to expedited removal under the United States Immigration and Naturalization Act, section 235(b). I understand that this removal would result in an automatic five year bar from entering the United States from which there is no appeal. Furthermore, I understand that a subsequent attempt to enter the US during the life of this bar results in a lifetime bar, and also constitutes a felony under federal criminal law. Of course, for more information and to confirm this information, a United States attorney should be consulted.
Benefits: (a)
The processing of the work permit application will likely be done “on the spot”.
(b)
No application form is required for work permit applications at a POE.
(c)
You can call the POE to run hypothetical situations or the potential application by them prior to your client making the application or just to ensure that a supervisor is available if you are concerned that the work permit application may require the review of a supervisor. POEs have supervisors available most hours of the day and some can adjudicate work permit applications at any time of the day. Some POEs have unique rules (ie. the Coutts POE will consider new work permit applications but will not consider work permit renewal applications and advise that such renewal applications should be processed inland).
(d)
You usually have an opportunity to speak to the Supervisor / Program Manager at the POE regarding any refusal or “exotic” decisions by CBSA officer(s).
Disadvantages:
3780884.8
(a)
The CBP officer may state that you are refused entry to the United States, causing future issues regarding entry to the United States. Note R 25(3) regarding refused entry elsewhere and the earlier discussion regarding United States implications.
(b)
You can not control the evidence your client gives in person. (This is true even if you are present! While there is no right to legal counsel unless your client is detained, many
–9– CBSA officers will allow you to “attend” the interview if you are not disruptive and if you only take notes. They may also ask you to step aside as they question your client.) Thus, there is room for miscommunication between CBSA and your client. (c)
6.
If the work permit application is refused, the applicant may be asked to leave Canada (ie. issued a removal order), return to the United States or their country of citizenship, or withdraw their application and leave Canada (ie. without a removal order but with a condition that the foreign national must leave Canada within a certain number of days).
Preparing clients for POE applications
Your client should be well prepared for submitting the work permit application at the POE. Often, clients are quite nervous about the POE (and flag-polling) procedure so it is important for them to know the process and feel at ease so that they can present themselves without any miscommunication. Mock interviews help with familiarizing the client with the elements of the interview, and the following could be addressed:
3780884.8
(a)
Preparation – The applicant should review the work permit application and all supporting documentation (since they would have prepared the application with you, they should already agree with and be comfortable with the submission).
(b)
Presentation – The applicant should dress neatly. Casual business attire in keeping with their job position is appropriate. Advise the client to be as calm, courteous, and cooperative as possible.
(e)
Knowledge – It is important for the applicant to understand that working in Canada is a privilege which is only granted if they are eligible under our laws. (i)
Evidence – The applicant must be forthright, candid and honest with all their evidence. Where the client views the process lightly, take effort to ensure that the client understands the serious repercussions of any false statements. (ie. In the case of business visitor applications, I impress upon the clients with the definition of work and work permit under IRPA.) See IRPA ss.15, 16 and 18 for more information.
(ii)
CBSA discretion - Advise that the CBSA has a wide range of discretion. For instance, the final decision on a positive LMO work permit application remains with the CBSA officer at the POE. (In fact, the letter issued by Service Canada regarding the positive LMO should advise your client of the same.) If the work permit is issued, the client should know that the work permit should be issued for the duration shown on the LMO.
(f)
Your availability – Try to be available during the time of your client’s interview with the CBSA officer so that you or your staff can be reached, or the applicant’s employer can be reached. I often provide my cell phone number to clients. As stated before, it is helpful to know that a CBSA supervisor is on duty at the time of the work permit application.
(g)
Process – Here are the steps I provide to clients for a POE application (including instructions for a flagpole work permit application):
– 10 –
Step One: Documentation to bring with you Please ensure that you have with you the following documentation: 1. Application fee - $150.00 CDN. You may pay on arrival by cash (US or CDN), VISA, or MasterCard (American Express is not accepted); 2. (See the list of documents in this paper under “ Documents to submit for a work permit application”) Step Two: Arrival at the United States Border Crossing When you arrive at the United States border crossing, tell the United States Customs and Border Protection officer that you would like to exit Canada for the purpose of making an application for a Canadian Work Permit at a Canadian Port of Entry. They will not grant you entry into the United States, but rather ask you to turn around and immediately join the queue of cars waiting for entry into Canada. Step Three: Arrival at the Canada Border Crossing When you arrive at the border crossing, tell the Canada Border Services Agency (“CBSA”) officer that you would like to make an application for a Canadian Work Permit. The CBSA officer will ask you to park your vehicle and will direct you to the office where they will process your application. Step Four: The Immigration Office The reviewing CBSA officer will want to ensure that the details of the documentation are correct and that you possess significant experience necessary to be successful in the position for which you are being hired. The officer will also want to ensure that you intend to leave Canada once your work permit expires. Answer all questions concisely and honestly. In the event that there is a problem, please contact Phebe Chan at 604.643.1270. It is expected, however, that most of the time in the Immigration office will be spent waiting while the officer reviews the information, and types the details of the work permit into a computer and then prints out your Immigration document. Step Five: What you should receive While in the Immigration office, you should expect to receive the following document: A Work Permit for the position of ______ for ________ valid for ________ months/years from the date you submit the application Your work permit will read “This does not authorize re-entry”. This does not mean that you cannot leave the country and come back. It only means that upon re-entry, the Immigration Officer is always entitled to ask you questions about your Work Permit and to confirm you are still doing the same work with the same employer. Please ensure that the details on your Immigration document are correct prior to leaving the Immigration office. If the reviewing officer types in any incorrect information on the forms, it cannot easily be changed once you’ve left the office, and mistakes can seriously impinge on your ability to work in Canada. As long as you are in the Immigration office, mistakes can be easily rectified if you find an error in the work permit. Please advise us when you have received your Immigration document and provide us a copy of the same at your earliest convenience.
3780884.8
– 11 – (h)
7.
If issues arise and a matter can not be resolved between the work permit applicant and the CBSA officer, my clients are told to follow this sequence of recommended steps: (i)
Ask if they can call their lawyer or employer for further instructions or clarification;
(ii)
Ask the CBSA officer to call our office or the employer for further clarification;
(iii)
Try to take note of the CBSA officer’s badge number or name;
(iv)
Ask to speak with the CBSA supervisor on duty (although some POEs prefer that the applicant’s representative speak directly with the supervisor);
(v)
Ask to withdraw their application and/or ask if the matter will be permanently recorded; and
(vi)
Prepare a written summary of the event for your records.
Unique POE Applications
This section focuses on applications which present unique circumstances at POEs. (a)
Negative Temporary Foreign Worker Unit Opinions (i)
The TFWU was created to pre-screen work permit applications which may or may not fall into confirmation exempt categories. Essentially, you would be providing much of the information documentation that you would regularly include in your Work Permit Application (with the addition of a copy of the business license and proof of incorporation, should you choose to follow the suggested supporting documents of the TFWU), all of which is submitted for a senior immigration officer to determine whether this situation is LMO exempt. While the TFWU is intended to provide CBSA officer with a higher degree of confidence in issuing the work permit, the CBSA may be willing to overturn a refusal of the TFWU where the TFWU has acknowledged in FOSS that certain information or documentation was not fully reviewed or, that new information or documentation had arisen since the application to the TFWU.
(ii)
3780884.8
If you are requesting that the CBSA officer still issue a work permit despite the negative TFWU opinion (for instance, on the basis of new evidence, or on the basis of R.205: Significant Benefits to Canadians) then further supporting documentation would be required for the CBSA officer to make the final decision regarding the work permit application. If your client received a negative TFWU, that opinion should still be recorded in the FOSS along with the underlying reasons for the refusal. Nonetheless, it is advisable to provide a copy of the TFWU opinion. In such cases, I have found it helpful to contact the TFWU and advise them that you have new evidence and are seeking a final decision from the CBSA officer, then advise the CBSA officer of the TFWU’s knowledge of your POE application.
– 12 – (b)
Serious Criminality (i)
(c)
Time Sensitive Applications (i)
(d)
Your client’s work permit application may be submitted at a POE along with a Authorization to Return to Canada (“ARC’) application. As discussed above, if strong reasons can be provided for this application to be adjudicated at the POE, a request should be made to the delegated authority at the POE to determine if the ARC application could be processed there. The application fee for an application under s.52(1) of the IRPA is $400 (per R310).
Implied Status or Work Permit Extensions (i)
3780884.8
Your client’s work permit application may be submitted at a POE along with a Temporary Resident Permit (“TRP”) application under ss. 24 and 29 of the IRPA. As discussed above, if strong reasons can be provided for this application to be adjudicated at the POE, a request should be made to the delegated authority at the POE to determine if the TRP application could be processed there. It is important to note that the granting of a TRP does not provide your client with the ability to work under a work permit, regardless of the two applications being submitted together. According to R 298, the application fee for a TRP is $200 unless R298(2) applies.
Authorizations to Return to Canada (i)
(f)
If there is an element of time sensitivity for your client and your client has strong reasons (ie. economic ramifications or best interest of a child) for processing at a POE rather than a visa office abroad, you can make a simple request for POE processing to the Operational Chief or Program Manager for the POE. This request could include an executive summary with brief background information and an explanation of the time constraint. It may also be helpful to make that same application to the appropriate visa office abroad, and provide a copy of the application to the POE. In my experience, POEs have been graciously willing to adjudicate such “time sensitive” requests.
Temporary Resident Permits (i)
(e)
Most criminal rehabilitation applications will be adjudicated by the CBSA at the POE. In fact, since the CBSA has access to CPIC and FBI results, they have been kind enough to process such rehabilitation applications without a hard copy of the criminal record results including in the rehabilitation application. However, if your foreign national’s work permit application is being submitted at a POE with a criminal rehabilitation application involving serious criminality and your client has a visa or is visa-exempt, you may wish to contact the program manager or Operational Chief for the POE (rather than the CBSA officers) with a brief summary letter to request if the application could be adjudicated there. The application fee for a determination of rehabilitation under s.36(3) of the IRPA is $1000 for serious criminality under s.36(1)(b) or (c). Otherwise, the application fee for determination of rehabilitation under s.36(2)(b) of the IRPA is $200 for criminality.
Please see the discussion later in this paper. If you send your client to the POE to submit a work permit extension application prior to a decision on the work
– 13 – permit extension application which was already sent to Vegreville (see R183(5)), it is suggested that the receipt for the application for the initial Vegreville work permit extension be included in the application materials, as that initial extension submission may not be indicated in the FOSS. 15.
What to Bring to a POE application
Consider including everything set out in the next section of this paper, as well as a cover letter which summarizes the documents which are included in the application. I also like to request that the CBSA officer contact me directly if there are any questions or concerns regarding the application. 16.
Documents to submit for a Work Permit application
The foreign national must provide evidence that they meet the requirements of IRPA for the issuance of a work permit by way of the following documentation (this is an expanded list of the outline in Section 7 of the FWM): (a)
If necessary, the application form;
(b)
A detailed letter from the employer, which sets out the background information regarding the foreign worker and reasons for the request for entry as well as the specific provisions of IRPA under which the foreign worker is making the work permit application;
(c)
Copies of relevant documentation evidencing the eligibility criteria of R200(1)(c) are met, such as:
(d)
3780884.8
(i)
a positive Labour Market Opinion;
(ii)
a Provincial Nomination Certificate, which should be recorded in the FOSS. I still recommend that a copy of the certificate be included in the application materials;
(iii)
a positive Temporary Foreign Worker Unit (“TFWU”) Opinion. Once a TFWU opinion has been rendered, that opinion is recorded in the FOSS under the Client Identification Number. (If your client received a negative TFWU, that opinion should still be recorded in the FOSS along with the underlying reasons for the refusal.) Nonetheless, it is advisable to provide a copy of the TFWU opinion. Furthermore, if you are requesting that the CBSA officer still issue a work permit despite the negative TFWU opinion (for instance, on the basis of new evidence, or on the basis of R.205: Significant Benefits to Canadians) then further supporting documentation would be required for the CBSA officer to make the final decision regarding the work permit application. In such cases, I have found it helpful to contact the TFWU and advise them that you have new evidence and are seeking a final decision from the CBSA officer, then advise the CBSA officer of the TFWU’s knowledge of your POE application despite the refusal;
(iv)
A copy of the offer of employment from the employer in Canada; and
(v)
Acceptance into a Youth Exchange Program;
A copy of the applicant’s proof of identity: passport and/or Visa pursuant to R52(1) unless exemptions at R52(2) apply;
– 14 – (e)
If applying within Canada, a copy of the applicant’s current immigration document;
(f)
Background documentation evidencing the qualifications and experience of the applicant for the employment sought; (i)
17.
The applicant’s resume and if relevant, copies of personal certificates, diplomas, or degrees;
(g)
Any other documentation supporting key evidence in the work permit application which will satisfy the officer that the requirements of the IRPA and Regs are met (ie. a letter regarding the significant benefits to Canadians, the Corporate Flowchart for the group of international companies, letters of support from past and current clients);
(h)
Any documentation explaining or making an application with respect to potential medical inadmissibility (health conditions which may affect the public health or excessive demands on our health services), criminal charges or record, or any other public safety or security concerns;
(i)
IMM 5476 Use of Representative form; and
(j)
The Application Fee. The application fee for a work permit is $150 (R299(1) unless (2) applies). The maximum change for a group of three or more persons, consisting of performing artists and their staff, who apply at the same time and place, is $450 (R299(3).
What will the visa, CBSA, or CPC-Vegreville officer consider?
The visa, CBSA, or CPC-Vegreville officer should determine the following issues in relation to a work permit application: (a)
Whether the foreign national will be doing work in Canada;
(b)
Whether the foreign national will leave Canada after their temporary stay (R200(1)(b));
(c)
Whether the foreign national can apply at the visa office abroad, the inland process, or the POE; (i)
3780884.8
If the foreign national is applying at a POE, is he/she in possession of an approval letter issued by the Visa Office abroad regarding the Work Permit;
(d)
If so, whether the foreign national is exempt from a LMO;
(e)
If not, whether the foreign national is in possession of a LMO;
(f)
If they are in possession of a LMO, whether the foreign national possesses the credentials stipulated in the LMO, such as the requisite education, training, experience, and qualifications;
(g)
Whether the foreign national meets all other requirements under the IRPA such as: the validity of the passport, payment of processing fees, no criminal inadmissibility, no medical inadmissibility, and potentially prohibitive issues under R200(3) (for more details, see Section 8 of the FWM);
– 15 –
8.
(h)
If the officer determines that all the requirements have been met, they may proceed by issuing a work permit to the foreign national;
(i)
If the officer determines that the foreign national is inadmissible then: (i)
A TRP can be issued if the circumstances are warranted; or
(ii)
If the matter is at a POE, the CBSA officer can select the appropriate enforcement option.
Issuance of Work Permits
Work Permits should be issued in accordance with R200(1) and (2): (1) Subject to subsections (2) and (3), an officer shall issue a work permit to a foreign national if, following an examination, it is established that (a) the foreign national applied for it in accordance with Division 2; (b) the foreign national will leave Canada by the end of the period authorized for their stay under Division 2 of Part 9; (c) the foreign national (i) is described in section 206, 207 or 208, (ii) intends to perform work described in section 204 or 205, or (iii) has been offered employment and an officer has determined under section 203 that the offer is genuine and that the employment is likely to result in a neutral or positive effect on the labour market in Canada; and (d) [Repealed, SOR/2004-167, s. 56] (e) the requirements of section 30 are met. (2) Paragraph (1)(b) does not apply to a foreign national who satisfies the criteria set out in section 206 or paragraph 207(c) or (d). Unique Issues regarding issuance of work permits Unique issues regarding the issuance of work permit applications include but are definitely not limited to: (a)
LMO-expiry date (i)
3780884.8
Note that as of May 19, 2009 HRSDC has established a maximum period of six months during which an LMO may be used to apply for a WP. This six month period is defined by the LMO or confirmation expiry date provided by Service Canada. The LMO expiry date (under “Offer Valid To”) does not affect the processing time needed by CIC after the LMO is submitted with a WP application. The work permit may be issued after the LMO expiry date, as long as the application was received before the expiry date. Applications received
– 16 – with an expired LMO are to be treated as incomplete applications and returned to the applicant. The transitional period for this policy is until November 28, 2009. (ii)
(b)
CBSA will finalize applications that have already been initiated overseas even if the LMO expires: the missions will have ensured that the LMO expiry date was still valid at the time of the initial application receipt. However, CBSA officers must issue the work permits on or before the validity date. If the LMO validity has expired, the CBSA officer still has the ability to issue a work permit if they contact Service Canada to obtain an extension of the LMO expiry date. For more details, see Operational Bulletin 152 – August 28, 2009 and Section 6 of the FWM.
Duration of work permit (i)
Specifically, FWM 11.1 sets out the circumstances to be considered by officers regarding the duration of the work permit:
•
Passport Validity under R52(1); officers cannot issue a work permit or grant status as a temporary worker beyond the validity of the passport. Exceptions to this are noted in R52(2). An additional exception applies for work permits issued to those who may not have status as a temporary resident R202. (Note: All other criteria noted below are subject to passport validity, unless (like U.S. nationals) they are accepted.)
•
HRSDC confirmation; (Subject to passport validity, officers should issue the work permit for the complete duration of the confirmation taking into account CAQ validity where applicable.)
•
expected duration of employment in the job offer;
•
maximum time allowed by any particular program or agreement in which the client is participating. (Some programs or agreements may limit the length of initial issuance, extensions or total length of employment in Canada. See Section 11.2.)
(ii)
Preference should be given by visa officers to issuing a work permit for a longer duration: Providing requirements are met, officers should issue work permits for a longer rather than shorter duration. Where there is no reason to limit duration, officers should issue a work permit for the complete expected duration of the employment. It is in the Department’s and the client‘s best interest to lengthen the periods between times when clients require service, i.e. allowing a person to work, without having to submit renewal applications unnecessarily frequently, saves both the client's time and money, and the department's resources.
(iii)
3780884.8
The “Duration” of the employment period which is approved by Service Canada is usually a matter of months. The work permit validity date is shown under “Work Permit Valid Until”. The officer will typically use that date, unless unique circumstances apply, such as: the employment period limited by the
– 17 – validity of the passport, other statutory requirements, or a later arrival at the POE than intended. If the foreign national arrives at a POE later than originally intended, then the CBSA officer should issue the work permit from the date of entry in Canada, for the “Duration” of employment and change the date under “Work Permit Valid Until”. If the applicant is issued a work permit for a shorter duration than the LMO allows, the officer should be referred to the policy at Sections 6 and 11 of the FWM. Please note that the FWM also states at section 11.1 that if a TRV is necessary, it should be of the same duration as the work permit (or passport, if it will expire first) and it should allow for multiple entries, provided there are no restrictions. (c)
Conditions on the work permit (i)
(d)
•
a period of stay, or validity period of the work permit must be imposed;
•
other conditions noted in R185(b) should be imposed depending on whether the work permit
•
should be open or a medical examination has been completed (as per the instructions in FWM 9 and 10).
Work permits can also be issued under international agreements (R204) and other categories (R207). (i)
18.
General conditions are imposed on all temporary residents (including workers) by operation of R183. Individual conditions may be imposed by an officer under R185 as follows:
If the work permit application is related to the 2010 Winter Olympic/Paralympic Games, it may be helpful to refer to the new policies. For more information, see Operational Bulletin 147 – August 17, 2009.
Refusal of Work Permit Applications
Under R200(3), an officer shall not issue a work permit to a foreign national if: (a) there are reasonable grounds to believe that the foreign national is unable to perform the work sought; (b) in the case of a foreign national who intends to work in the Province of Quebec and does not hold a Certificate d'acceptation du Québec, a determination under section 203 is required and the laws of that Province require that the foreign national hold a Certificat d'acceptation du Québec; (c) the specific work that the foreign national intends to perform is likely to adversely affect the settlement of any labour dispute in progress or the employment of any person involved in the dispute, unless all or almost all of the workers involved in the labour dispute are not Canadian citizens or permanent residents and the hiring of workers to replace the workers involved in the labour dispute is not prohibited by the Canadian law applicable in the province where the workers involved in the labour dispute are employed; 3780884.8
– 18 – (d) the foreign national seeks to enter Canada as a live-in caregiver and the foreign national does not meet the requirements of section 112; or (e) the foreign national has engaged in unauthorized study or work in Canada or has failed to comply with a condition of a previous permit or authorization unless (i) a period of six months has elapsed since the cessation of the unauthorized work or study or failure to comply with a condition, (ii) the study or work was unauthorized by reason only that the foreign national did not comply with conditions imposed under paragraph 185(a), any of subparagraphs 185(b)(i) to (iii) or paragraph 185(c); (iii) section 206 applies to them; or (iv) the foreign national was subsequently issued a temporary resident permit under subsection 24(1) of the Act. SOR/2004-167, s. 56. With respect to POE work permit applications, R40 (Direction to leave Canada), R41 (Direction to return to the United States), and R42 (Withdrawing application and leaving Canada) set out the various “Conduct for Examination Measures” other than granting the application sought. If you think it would be helpful, try to document or ask your client to document the reasons for refusal if written reasons are not provided, then you can speak with the CBSA supervisor or program manager about the matter. (Some POE Program Managers would appreciate a discussion with you, particularly where you intend to apply for Leave and for Judicial Review, prepare a written complaint to your local CBSA regional office or take other action.) 19.
Work Permit Extensions, Changes, or Renewals (a)
Timing of submission of application
If a foreign national wants to continue to work beyond the validity of their work permit, or renew their work permit, this must be done prior to the expiry of the current work permit. See R181 on extension of authorization to remain in Canada as a temporary resident (otherwise IRPA s.47 applies) and R201 on renewal of work permits. However, applications to change or cancel the specific conditions on a temporary resident can be made at any time. For more information, see R183 regarding conditions on temporary residents, and R185 which sets out the conditions which an office may impose, vary or cancel. In particular, R185(b) addresses work-related conditions: (b) the work that they are permitted to engage in, or are prohibited from engaging in, in Canada, including (i) the type of work, (ii) the employer, (iii) the location of the work, (iv) the times and periods of the work, and
3780884.8
– 19 – (v) in the case of a member of a crew, the period within which they must join the means of transportation; (b)
LMO issues
Unless the work permit is LMO-exempt, a new LMO may be requested by the officer, however, if the LMO validity was for a date beyond that of the work permit expiry and as discussed earlier, the immigration officer granting that original work permit has not referred to the FWM Section 6, the LMO may not be required. (c)
Length of Time in Canada
The Pilot Project for occupations requiring lower levels of formal training respecting extension of work permits from within Canada at the end of 24 months states that officers are advised that a work permit application cannot be refused solely because a temporary foreign worker has already worked in Canada for 24 months, or has not returned home for a minimum period of four months. For more details, see Operational Bulletin 113 – May 12, 2009. (d)
Documentation, Application Fees, etc.
An application form, IMM1249, “Application to Change Conditions, Extend My Stay or Remain in Canada” is required for work permit extension applications. This must be mailed to CPC-Vegreville along with a new job offer contract, or explanation as to why the work permit is extended by the same employer for the same position with the same employment terms, and a copy of the LMO, if applicable, should be attached to the application. The application fee for an application under R181(1) is $150 (R305(1) unless (2) applies). Please note that an interview may be requested if the officer believes the application is incomplete, unclear or warranting further information. You may wish to include other evidence addressing issues which may be seen by the officer to be relevant to the issuance of the work permit (ie. that the foreign national has temporary plans to stay in Canada, or anything related to IRPA s.41). Stainslavsky v. Canada, 2003 FCT 835 (T.D.) and Patel v. Canada 2006 FC 224 (F.C.) are helpful cases where the Federal Court said that the purpose of a foreign national’s temporary status can change and be approved if legitimate. Furthermore, it is important to ensure that your client has a valid passport for the term of the extension requested. (e)
Maximum Renewals
Certain categories of work permits have limits regarding the maximum number of years allowable for renewals. Section 11.2 of the FWM sets out these categories as well as the validity periods which may not be exceeded for each category: Professionals - NAFTA/CCFTA (R204, CEC T23): Work permits may only be issued for three years, with renewals by one- year increments and GATS (R204, CEC T33): 90-day limit per 12- month period.
3780884.8
– 20 – Intra-company transferees - NAFTA/CCFTA (R204, CEC T24)1, General Provisions under IRPA and GATS R205(a), (CEC C12): Work permits may be issued for the following periods: • Executives and managers: max. 3 years, unless opening an office (1-year); 2-year renewals allowable; total period of stay may not exceed 7 years; * • Specialized knowledge transferees: max. 3 years, unless opening an office (1-year); 2year renewals allowable; total period of stay may not exceed 5 years. * * For these cases, a minimum period of one year must pass after the time cap (max. total period of stay) before applicants are eligible to be issued a new work permit in these categories. International Youth Exchange Programs R205(b), CEC C21 Most programs are 6 months or 1 year. Please note that the Australia Working Holiday Program is one of the exceptions, allowing for 2 year terms, renewable up to the age of 30 (www.whpcanada.org.au/introduction). Study permit holders Work permits issued under R205(c)(i), CEC 30, where the work is essential to the study program, should not exceed the validity date of the study permit. Spousal employment Provisions - Work permits issued under R205(c)(ii) CEC C41 or C42 (or under R205(b), CEC C20 in the case of spouses of military personnel or diplomats) should not exceed the duration of the principal applicant’s stay in Canada. Post Graduate Employment - R205(c)(ii), CEC C43 –Total employment can be up to 3 years (see the OP Manual section 5.24). The length of study, which must be more than 8 months, determines the duration of the work permit. Refugee Claimants, etc.- For work permits issued under R206, CEC S61 or S62, initial validity is 24 months, and renewals may be issued for one-year periods. Destitute Students - R208, CEC H81 A work permit should be issued only to allow the study permit holder to complete their term. TRP Holders - To be issued a work permit under R208, CEC H82, the temporary resident permit must be valid for a minimum of six months. The validity date of the work permit should not exceed the validity of the TRP. Special Category Countries - In most cases, foreign workers from these countries may be issued work permits beyond a one-year validity. See Appendix A of IC 2.
1
Effective December 15, 2008, Canada extended the duration of work permits for NAFTA professionals. Initial work permits can be granted for durations of up to three years. Extensions can also be issued in increments of up to three years, with no limit on the number of extensions, providing the individual continues to comply with the requirements for professionals. But officers must be satisfied that the employment is still temporary and that the applicant is not using NAFTA entry as a means of circumventing normal immigration procedures. For more details, see Operational Bulletin 085 – December 15, 2008. This extension of work permit duration does not seem to be applied to the Canada-Chile or Canada-Peru Free Trade Agreements. See the Operational Bulletin 124 –July 31, 2009 regarding Implementation of the Canada-Peru Free Trade Agreement.
3780884.8
– 21 – Note that for some other categories of work permits, there is no cap on the number of years for renewals but there is a cap on the duration of the work permit (ie. currently Information Technology workers are limited to a work permit for one year at a time). 20.
Implied Status
During the processing of the submitted “Application to Change Conditions, Extend My Stay or Remain in Canada ”, a foreign national may continue to work under the same conditions of their work permit until a decision is made as long as: (a)
they apply to renew or change their work permit before the expiry date;
(b)
their status expired before a decision was made; and
(c)
they complied with the “original” conditions of their work permit.
R183(5) states that if a temporary resident has applied for an extension of the period authorized for their stay and a decision is not made on the application by the end of the period authorized for their stay, the period is extended until: (a) the day on which a decision is made, if the application is refused; or (b) the end of the new period authorized for their stay, if the application is allowed. R186(u) states that a foreign national may work in Canada without a work permit: Until a decision is made on an application made by them under subsection 201(1), if they have remained in Canada after the expiry of their work permit and they have continued to comply with the conditions set out on the expired work permit, other than the expiry date. Furthermore, R190(3)(f) seems to allow the ability for non-visa exempt foreign nationals awaiting the decision of an extension of their work permit application (ie. thus on implied status) to leave and re-enter Canada without a TRV where the foreign national is re-entering Canada after a visit solely to the United States or St. Pierre and Miquelon. De Brito v. M.C.I. [2003] FC 1379, 242 FTR 145 is an interesting Federal Court case which clarifies the definition of “a person seeking to enter Canada” and provides helpful precedent in a situation where a Brazilian citizen who left and returned to Canada pending an extension application was found to have retained her implied status since she only travelled to the United States for a Canadian consulate interview. The Federal Court found that she met the requirements under R183(5) and (6) as a decision was still pending on her extension application. Further, the Federal Court concluded that she fulfilled the requirements under R190(3) which exempted her from the need for a re-entry visa to enter Canada. Note, however, that Section 24 of OP 11 states that if one leaves on implied status on a work permit, they can not return to work in Canada after re-entry until the application for renewal has been granted. Furthermore, for those who are not able to resume work, they must show that they have sufficient means of support. Of course, the above privileges also apply to persons on multiple-entry visas. 21.
Restoration
R182 states the following regarding restoration:
3780884.8
– 22 – On application made by a visitor, worker or student within 90 days after losing temporary resident status as a result of failing to comply with a condition imposed under paragraph 185(a), any of subparagraphs 185(b)(i) to (iii) or paragraph 185(c), an officer shall restore that status if, following an examination, it is established that the visitor, worker or student meets the initial requirements for their stay and has not failed to comply with any other conditions imposed. If the application to extend the work permit was not submitted prior to the expiry of the work permit, no implied status can be deemed for that for foreign national and they must stop work immediately after the expiry date. This means that the foreign national can only work up to and including the date of expiry unless they are under implied status. In that case, the foreign national must apply for a restoration within 90 days after the status was lost. Otherwise, if the applicant applies after 90 days, the application will be refused. Granting of restoration applications regarding work permits depends primarily on the applicant’s ability to prove that all the other conditions of the original work permit was met and that the applicant has a bona fide temporary purpose in Canada (which allows for a purpose which may be different from the original purpose – see Patel, supra or Stanislavsky, supra). With respect to the phrase “the initial requirements for their stay” in R179, an operational bulletin (see Operational Bulletin 130 – July 2, 2009) has stated that: “the phrase should not be read too literally when it is being applied in the context of a restoration application, and the requirements of R179 should not be applied rigidly in that regard. The preferred interpretation in this context would be that the person seeking restoration must meet the requirements of the class under which they are currently applying to be restored as a temporary resident. The desired approach to the restoration provision R182 is to be facilitative and consistent with the current approach to extension applications provision R181, since the two provisions are similar in nature and R181 actually refers specifically to the requirements of R179.” Some stronger reasons which usually result in granted restoration applications include: (a)
significant benefits to Canada, such as the applicant unique benefits to Canadians
(b)
the Canadian employer losing substantial revenues or incurring considerable costs due to the applicant’s inability to work
(c)
the applicant being one of the few qualified and experienced for the position (and an LMO was issued for this position)
(d)
the remaining term of work and temporary stay is short as the work is nearly complete
The application is sent to the inland Case Processing Center in Vegreville, Alberta. The application fee for a restoration application under R182 is $200 (R306(1) unless (2) applies) and the application fee of $150 for the work permit also applies. 22.
Concurrent Processing of LMO and Work Permit
When HRSDC and CIC announced in February 2007 that they would process LMO and Work Permit Applications concurrently if requested, that policy was warmly received due to the longer processing times for the LMO as well as the work permit applications. At the time of this paper, concurrent processing does not seem to be as necessary. Nonetheless, it may be helpful for you to request concurrent processing when making an application for a work permit either at CPC-Vegreville or at the 3780884.8
– 23 – visa office abroad. Once the LMO is received, a copy of the LMO should be provided to the visa officer, or to CPC-Vegreville at the Case Processing Centre, at 6212-55 Avenue, Vegreville AV T9C 1W5.. 23.
Open Work Permits for Spouses or Common-Law Partners or Dependants
An open work permit is not limited to any specific time period or employer, however, it may place restrictions on (few) occupations or locations. Open work permits are available to persons described under R206 (CEC S61 or S62, FWM 5.41), R207 (CEC A70, FWM 5.42), R208 (CEC H81 or H82, FWM 5.43), spouses of skilled workers (R205(c), C41, FWM 5.39) or spouses of foreign students (R205(c), C42, FWM 5.39) as well as certain workers admitted on a reciprocal basis. For more information, see Section 10.2 of the FWM. Spouses and common-law partners of principal applicants with valid work permits may request (non-job specific) work permits which are exempt from Service Canada’s LMO’s if: (a)
the principal applicant’s occupation falls within National Occupational Classification (“NOC”) skill levels: O-Management Occupations; A-Professional Occupations; or B-Technical or skilled Tradesperson/apprenticeship training occupations2; and
(b)
the principal applicant’s work permit is valid for at least 6 months.
Please note the Pilot Project for Working-Age Dependent Children of Workers Destined to Ontario, which will operate from July 1, 2009 to June 30, 2010 inclusively. (For more details, see Operational Bulletin 123 – June 25, 2009.) This Pilot Project will allow open work permits to be issued to dependent children of foreign nationals if all of the following criteria is met; the dependant: (a)
Must be eligible to work in the province of Ontario. (Note that the employer is responsible for ensuring the provincial minimum age employment standards are adhered to. Please refer to the following website for provincial guidelines: http://www.worksmartontario.gov.on.ca/scripts/default.asp?contentID=2-24&mcategory=health)
(c)
Must be a dependent child (see Immigration and Refugee Protection Regulations (IRPR), section 2, Interpretation) of a foreign national where the principal applicant is entering Canada, is destined to Ontario as a TFW and has a valid, job-specific work permit with a minimum duration of 6 months in an occupation found within skill levels 0, A or B of the National Occupation Classification (NOC) system.
Similarly, the Pilot Project for Working-Age Dependent Children of Workers Destined to Alberta, which will operate from July 1, 2009 to June 30, 2010 inclusively. (For more details, see Operational Bulletin 122 – June 25, 2009.) This Pilot Project will allow open work permits to be issued to dependent children of foreign nationals if all of the following criteria is met; the dependant: (a)
2
Must be aged 18-22 and eligible to work in the province of Alberta;
While not necessary, it is recommended that the NOC be placed on the principle applicant’s work permit in order to avoid any confusion respecting this criteria.
3780884.8
– 24 – (d)
Must be a dependent child (see Immigration and Refugee Protection Regulations (IRPR), section 2, Interpretation) of a foreign national where the principal applicant is entering Canada, destined to Alberta as a TFW and has a valid, job-specific work permit with a minimum duration of 6 months in an occupation found within skill levels 0, A or B of the NOC system.
While not necessary, it is recommended that the dependants all have immigration documents or notations (ie. visitor’s record indicated by CBSA’s stamp in their passport) in order to avoid any confusion. To make an application for an open work permit, provide the following documentation: (a)
a copy of the temporary foreign worker’s work permit
(b)
a copy of the temporary foreign worker’s passport identity page
(c)
a copy of the spouse or common-law partner’s passport identity page
(d)
proof of relationship – i.e. copy of marriage certificate or birth certificate
(e)
IMM1249 Application to Change Conditions or Extend Stay in Canada (if applying from within Canada). No forms is required if spouse/common-law partner is eligible to apply for their work permit at the port of entry.
(f)
IMM 5476 Use of Representative form
If an open work permit is required from a visa-exempt applicant and the principal applicant is making a POE submission, apply for the open work permit while the spouse/common-law/dependant and principal applicant are entering Canada, as this will be much faster than waiting for processing from within Canada.
3780884.8
