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Harsh Consequences of Imprecise and Inconsistent Policies for Graduates

By CILA on septembre 26, 2022

This guest article was authored by Maxwell Musgrove, Lawyer, Chaudhary Law Office.

Immigration officers have no discretion to modify or waive eligibility requirements for the Post-Graduation Work Permit Program (PGWPP). Despite this, representatives see, and applicants discuss on online forums, cases where work permits are granted despite applicants not meeting certain PGWPP criteria.

To create a more just and consistent PGWPP, it may be time for Immigration, Refugees and Citizenship Canada (IRCC) to either rewrite the program instructions in a clear and comprehensive form, or provide express authority for officers to exercise appropriate discretion.

The PGWPP allows many foreign students in Canada to acquire an open work permit after they graduate. This is often a step towards permanent economic immigration. The eligibility criteria and terms are not set out in Regulations or Ministerial Instructions. Instead, the criteria are found in a series of Program Delivery Instructions (PDIs) on IRCC’s website.

Unlike the PDIs for other immigration programs, the PGWPP PDIs are not merely guidelines. All the eligibility requirements must be satisfied. Even if an applicant has a compelling explanation as to why they could not satisfy certain requirements, officers cannot grant them a work permit. The eligibility criteria include that applicants must have maintained full-time student status, and if they took a leave from their studies they must provide evidence the leave was authorized by their school.

However, there are a couple of problems with strict application of the PGWPP criteria. First, it does not seem to align with people’s actual experience of the program. Some applicants are approved despite only being able to study part-time during some terms, while others in the same situation get refused. Given that these applicants invest tens or hundreds of thousands of dollars, not to mention years of their lives, to apply to the PGWPP, this lack of consistency and predictability can be unfair and expensive.

Usually applicants are encouraged to provide letters of explanation for nuances that arise in their applications. In more complex cases, they may also retain an immigration representative to help make detailed submissions. If officers are supposed to apply the criteria strictly, and have no discretion to consider such submissions, it discourages applicants from raising these issues. There is an incentive for applicants to stay silent, and hope any period of part-time studies gets overlooked by an officer

The second issue is that the PDIs for the PGWPP are not clear enough. There are no less than five different PDI pages for the PGWPP, not including numerous temporary changes related to Covid-19. These pages are not always consistent, and do require officers to exercise some discretion in how they are interpreted.

For example, applicants are ineligible for a work permit if they completed “general interest or self-improvement courses”.  The PDIs do not define “general interest” courses. It is not clear from the PDIs if completing a single self-improvement course, while also pursuing a post-secondary degree in the student’s chosen career path, results in the student becoming ineligible for the PGWPP.

The PDI page “Post-graduation work permit eligibility requirements” states that Applicants can receive only 1 post-graduation work permit in their lifetime.  However, the page “Post-graduation work permit (PGWP) validity and application” describes a narrow circumstance in which the work permit may be extended. When a work permit is extended, it does not modify the original permit; a new physical permit must be sent to, and presumably received by, the applicant.

Likewise, the eligibility requirements page says that, to obtain a post-graduation work permit, applicants must have valid temporary status or have left Canada.  Yet the validity and application page explains that there are other circumstances, described in section 199 of the Regulations, which also allow a person to apply from within Canada.

The eligibility requirements page says that an applicant must have completed a program at an eligible institution leading to a degree, diploma, or certificate.  If an applicant then looks to the “Post-Graduation Work Permit eligible programs and institutions” page they will see that, for authorized private institutions, only programs leading to a degree are eligible, not diploma or certificate programs.

The eligibility requirements page also contains the full-time enrollment status requirement.  The page states that exceptions can be made only for an authorized leave from studies, or for a final academic session.  However, the validity and application page provides a third exception for applicants who are impacted by a strike affecting their school.

All of this does not even consider the various temporary exceptions, exceptions and alterations brought about during Covid-19.

While these conflicting instructions may only apply to a small number of applicants, they demonstrate that the program requires officers to exercise some discretion to resolve contradictions in the PDIs. IRCC must either grant officers this discretion, with guidelines to ensure it is exercised in a fair and consistent manner, or carefully re-write the PGWPP in a way that can be applied consistently to all applicants.

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