Foreign nationals who are required to maintain status at all times

Dear Miss Powell,

My work permit expired last month, but I applied for permanent residence and hoping that I will get same. I heard that I will be deemed to have implied status, and so I can stay in Canada while the application is being processed. I’m just checking with you to make sure that I’m doing the right thing. How long does the implied status last? Can I go home for Christmas? I look forward to reading your response in The Gleaner. Thank you for your time.

NH

Dear NH,

Foreign nationals who are in Canada are required to always maintain status when they are in Canada. That means that if you are a temporary resident, such as a visitor, student, or foreign worker, and you apply to extend your temporary resident status before the permit expires, you can legally remain in Canada until a decision is made on the application. During the period that you are waiting for your application to be processed, you are deemed to have implied status.

If you remain in Canada, this implied status is recognised by the government of Canada, and you are not regarded as remaining illegally, or seen as someone who has overstayed or run afoul of the immigration rules. However, if you leave Canada, this status will no longer be applicable to you. You will be required to reapply to renter Canada.

Since, in your case, your work permit has expired only a month ago, and you applied for permanent residence, you may have options to get back your work permit. You did not indicate the programme to which you applied for permanent residence. However, you should note that if you qualify, and remain in Canada, you may be able to apply for a Bridging Open Work Permit (BOWP) after you have applied for restoration.

RESTORATION APPLICATION

You may apply to the government to restore your status as a worker if your permit has only just expired. You may apply to restore your status as a worker online. You are required to pay the restoration application fee and the fee for the work permit. The status is usually restored for approximately three to six months, during which time you are expected to apply for the correct programme, such as a BWOP. The key is to apply for restoration within 90 days of losing your status. If you fail to apply within that time, you will need to leave Canada and reapply from outside Canada.

Once you have restored your status, you may be able to meet certain programme requirements to be considered for an open work permit, while you wait on your permanent residence application to be processed.

BRIDGING OPEN WORK PERMIT

A BOWP allows a foreign national to continuing working while they transition between the expiry of their current work permit and the final decision on their application for permanent residence. This ensures that the individual maintains status in Canada. If you have a BOWP and you leave, you will be authorised to renter Canada as a temporary resident.

PERSONS WHO QUALIFY FOR BOWP

You must first have valid temporary resident status. Normally, you should make the application for a BOWP 30 days before the expiry date of the work permit, or in your case, apply for restoration within 90 days of losing your status and then applying for the BWOP.

If you are the principal applicant and have applied for permanent residence under any of the economic classes such as Federal Skilled Worker Class, Canadian Experience Class, Federal Skilled Trades Class, then you qualify for a BOWP. Other classes include the ‘caring for children’ class or ‘caring for people with high medical needs’ class before June 18, 2019; Provincial Nominee Programme; Agri-food Pilot; Quebec Skilled Worker Class.

If you applied under the Provincial Nominee Programme and your application has been approved, you must include a copy of the nomination letter issued by the nominating province or territory with the application. The nomination must state that the employment is unrestricted.

Individuals who applied under the Agri-food Pilot must provide a copy of the approval-in-principle letter in the ‘client information’ field when applying for the BOWP.

Additionally, the spouse or common-law partner of a Bridging Open Work Permit and their dependent child may be eligible for an open work permit and a study permit as well. Their permit would be tied to that of the principal applicant.

The application process in Canada can often appear simple on the government’s website, but misinterpretation of the rules, making mistakes, omitting relevant information, forgetting deadlines or missing them completely could be detrimental to your application and ability to legally remain or return to Canada. I strongly recommend that you seek the assistance of an experienced immigration lawyer to provide you with the options based on your situation.