Authored by Chaobo (Bo) Jiang, Canadian Immigration Lawyer, Zaifman Law.
When I started practicing Canadian immigration law, my mentors always told me: a Foreign National (FN) must keep their legal status valid during their entire period of stay in Canada.
While the Immigration and Refugee Protect Act and its Regulations allow for restoration within 90 days of losing valid status, that is not something to rely on but rather a fail-safe! This was a concept that I have held fundamental to my immigration legal practice. So, when an FN’s application for an extension of status as a student or as a worker could potentially be refused, the common advice given is for the FN to apply for an extension of temporary resident status as a visitor in Canada to maintain valid legal status. Pretty straightforward, right?
I encountered a situation recently which threw a wrench into the mix. Personal and identifying information redacted, but the basic scenario is this, and it is more common than you would think:
An FN has a pending permanent residence application and was awaiting an AOR to be able to apply for bridging open work permit (BOWP). Their work permit is expiring so the FN applies for a work permit extension explaining that they were waiting for the AOR to arrive, hoping to receive the AOR in time to update IRCC in their work permit extension application. The FN also concurrently applies to extends temporary resident status in Canada as a visitor. Unfortunately, as the FN did not receive the AOR in time prior to the processing of the work permit extension, it was refused. However, IRCC was nice and approved the FN’s visitor status from their pending visitor application for a pretty long period of time. The FN is now in Canada under visitor status for the foreseeable future. Shortly after all of this goes down, the AOR arrives.
Let’s consider the following general eligibility for the BOWP as per the IRCC Program Delivery Instructions (PDI) on BOWP:
“To be eligible for a bridging open work permit (BOWP), foreign nationals must
- meet one of the following criteria at the time of submission:
- have valid temporary resident status and authorization to work as the holder of a valid work permit
- have maintained status and authorization to work under paragraph 186(u) of the Immigration and Refugee Protection Regulations (IRPR) as a result of submitting an application to renew their work permit under subsection R201(1)
- be eligible to restore their temporary resident status with authorization to work on a work permit[1]”
So, with that in mind, is this person still eligible to apply for a BOWP?
I think the answer is very likely no. The BOWP eligibility indicates three possible ways of meeting eligibility: 1. valid worker permit holder, 2. under maintained status pending a work permit extension application, or 3. can obtain restoration of status to the authorization of a worker. Given the FN is now under visitor status, they are no longer eligible to apply for a BOWP as they do not meet any of the aforementioned eligibility requirements. The fact that the FN has kept themselves in legal status as a visitor ensures that restoration is no longer an option, even if the FN is still within 90 days of the refusal of the work permit extension application. In addition, the last status/authorization held by the FN is now visitor status with no work authorization. This would also remove the possibility of restoration to a worker, as IRCC has in recent years clarified that an FN may only restore to the last status and authorization held by the FN immediately prior to the restoration application submission[2].
While this individual may request reconsideration, a Temporary Resident Permit, or look for another work permit eligibility in order to resume work in Canada, the FN will have to wait for IRCC’s response and may have to depart Canada pending the continued processing of the permanent residence application if their visitor status expires. The outcome of the FN’s permanent residence application may even be affected by the ensuing complexity in their immigration status.
Now, going back to the same fact pattern, what if the individual did not apply for that visitor extension, instead opting to go out of status in the event their work permit extension application was refused? In that case, I would argue that the FN could then apply to restore their status as a worker and, upon approval, may resume work pending the processing of the permanent residence application. Hypothetically, if the FN had received, within the 90-day restoration period, or even during the processing of a restoration to worker status application, the AOR document, there is a good possibility that an IRCC Officer may approve the BOWP and restoration request. The last status and authorization held prior to losing status would be that of a worker, further satisfying IRCC’s interpretation for restoration eligibility and BOWP eligibility.
Of course, there is far more complexity to this scenario than can be explained here, but the question here warrants consideration. Is going into the restoration period willingly a valid option to offer for the client to consider if there is a significant possibility that a benefit could vest during the 90-day restoration period? The risk may even be minimal, as the FN could still, in theory, apply to restore their status to a visitor prior to the expiration of the 90-day period to regularize their status in Canada as a visitor.
The purpose of a BOWP, as IRCC has stated, is to ensure that FNs who are already working in Canada to keep working and to settle/transition towards permanent residence, thus creating economic or social benefits. I believe this identified issue can be resolved by broadening BOWP eligibility to enable an individual who recently held valid work authorization and has a pending permanent residence application to continue working in Canada.
There are various ways to resolve this issue. As examples:
- IRCC has set out timing limits in the context of a post-graduation work permit from visitor status (must apply within 180 days after graduation[3])
- IRCC has imposed a look-back limit in the context of IRCC’s interim work authorization public policy (someone who has held a work permit within the past 12 months[4]).
I argued that similar approaches can be taken in the context of broadening BOWP eligibility. Alternatively, an exception can even be made to allow individuals who have valid visitor status in Canada to apply for an open work permit (the current visitor to worker public policy, which is set to expire in February 2025, is employer-specific work permit only[5]). I note that precedent for visitor to open work permit status already exists, as a FN under visitor status being sponsored for permanent residence by a spouse/common-law partner can apply for an open work permit inside of Canada. This public policy is also empowered by the Minister under the same legislative authority pursuant to R205(a) to generate economic and social benefits to Canada, which enabled the existence of BOWPs.
[1] Bridging open work permits for certain economic class permanent residence applicants [R205(a) – A75] – International Mobility Program-General eligibility: https://www.canada.ca/en/immigration-refugees-citizenship/corporate/publications-manuals/operational-bulletins-manuals/temporary-residents/foreign-workers/provincial-nominees-permanent-resident-applicants/bridging-open-work-permits.html#toc1
[2] Restoration of Temporary Resident Status: https://www.canada.ca/en/immigration-refugees-citizenship/corporate/publications-manuals/operational-bulletins-manuals/temporary-residents/visitors/restoration-status.html
[3] Post-graduation work permit (PGWP) [R205(c) – C43] – International Mobility Program: https://www.canada.ca/en/immigration-refugees-citizenship/corporate/publications-manuals/operational-bulletins-manuals/temporary-residents/study-permits/post-graduation-work-permit-program.html#s2
[4] Public policy allowing certain visitors in Canada to apply for an employer-specific work permit-
Eligibility requirements for interim authorization to work: https://www.canada.ca/en/immigration-refugees-citizenship/corporate/publications-manuals/operational-bulletins-manuals/service-delivery/coronavirus/temporary-residence/work-permit/visitor-work-permits.html#toc3
[5]Public policy allowing certain visitors in Canada to apply for an employer-specific work permit-
Eligibility requirements for visitors to apply for an employer-specific work permit: https://www.canada.ca/en/immigration-refugees-citizenship/corporate/publications-manuals/operational-bulletins-manuals/service-delivery/coronavirus/temporary-residence/work-permit/visitor-work-permits.html#toc2