Restoration of Status

There are many ways that people who come to Canada legally can suddenly find themselves inside Canada without valid status.  Some may simply forget to submit applications to extend their status prior to the end of the period of their authorized stay.  Others may submit their extension applications on time only to have Immigration, Refugees and Citizenship Canada (“IRCC”) later refuse or reject their applications for being incomplete, leaving them without status in Canada.

While Canadian immigration law provides such foreign nationals with some options to regain valid temporary resident status in Canada, it is important that people understand the risks associated with each.

Leaving Canada and Re-Entering

The first, and arguably the riskiest, way that a foreign national can regain legal status in Canada is to exit Canada and re-enter.  Anyone who does this will need to satisfy the Canada Border Services Agency (“CBSA”) that they will leave Canada by the end of their authorized stay, which can sometimes be tricky if the person has previous overstayed.  As well, if the foreign national wants to work or study, then they will need to demonstrate to CBSA that they are eligible to do so.

Restoration of Status

For many, exiting Canada and re-entering is simply too risky or too expensive if they do not have a US visa.  Luckily, Canada’s Immigration and Refugee Protection Regulations provide that if a visitor, worker, or student loses their status in Canada, then they can apply to restore their status if they do so within 90 days of their status expiring.

Restoration applications must be submitted either online or by mail to IRCC.  Restoration applications cannot be submitted while entering Canada at a Canadian port of entry.

It is vital that foreign nationals submit their restoration applications within the 90 day period after their temporary resident status expires.  The failure to do so will automatically result in the restoration application being refused.

For those who lose status because IRCC refused their temporary residence extension application, the 90 day window to apply for restoration starts on the date that IRCC refuses the extension application, rather than when the foreign national’s work or study permit expired.  The 90 day window does not start on the day that the applicant receives the decision.  Although this may seem very unfair to those who lose time due to postage delays, the Federal Court has held that this rule even applies where there is a 90 day delay between IRCC refusing an application and the applicant receiving the decision.

Finally, it is important to note that students cannot study during the restoration period, nor can foreign workers work.

Removal and Restoration  

Many people are under the mistaken assumption that the 90 day restoration window provides a grace period from removal. This is not the case, as highlighted by a July 2016 Federal Court decision called Ouedraogo v. Canada.  There, the court explicitly determined that removal and restoration can operate in parallel, and that there was nothing prohibiting the CBSA from removing people during the 90 day restoration window if they had not yet applied for restoration.

The issue of whether CBSA can remove people from Canada after they have applied for restoration is more contentious.  Practically speaking, once a restoration application is submitted, it is very rare for CBSA to issue a removal order against a foreign national despite them being in Canada without status.  Where they have done so, the Federal Court has typically quashed the removal order and declared it invalid.  As the Federal Court noted in the case of Yu v. Canada, “ it cannot generally be said that a temporary resident who has applied for the restoration of a permit in a timely manner has failed to comply with immigration legislation.”

In any event, people who wish to apply for restoration of status need to do so with the understanding that at any point during the 90 day window to apply for restoration, or even possibly when their restoration is in process, the possibility exists that they can still be removed from Canada.

Temporary Resident Permits

It is difficult for people who have remained in Canada for more than 90 days beyond the expiry of their temporary resident permits and visas to regain legal status.  Such individuals may apply for permanent residence either by being sponsored by a Canadian through the Spouse or Common-Law Partner in Canada Class, or by submitting an application for permanent residence on humanitarian & compassionate grounds.

It is even more difficult to regain temporary resident status.  In very narrow circumstances, such individuals may apply for a Temporary Resident Permit. However, the situation must be exceptional, and simply remaining in Canada for more than 90 days beyond the expiry of temporary resident status will not automatically lead to such a permit being granted.

Conclusion

Of course, the best option is to simply not lose temporary resident status in the first place.  As such, it is important to keep track of when permits expire, to ensure that extension applications are complete, and to proactively move towards being eligible for any extensions.  The most common reason why people fall out of status is because they start the process too late.


Religious Workers and Work Permits

There are generally two types of religious workers who seek entry to Canada to work. The first are clergy (which includes Buddhist monks, Sikh granthis, rabbis, priests, preachers, pastors, etc.) whose employment in Canada will consist mainly of preaching doctrine, presiding at religious functions, or providing spiritual counselling.  Section 186(l) of the Immigration and Refugee Protection Regulations (“IRPR“) provides that such people may work in Canada without a work permit.  IRPR r. 186(l) states:

186. A foreign national may work in Canada without a work permit

(l) as a person who is responsible for assisting a congregation or group in the achievement of its spiritual goals and whose main duties are to preach doctrine, perform functions related to gatherings of the congregation or group or provide spiritual counselling;

Generally, applicants applying to work in Canada without a work permit under IRPR r. 186(l) need to demonstrate that they have a genuine offer of employment from the religious denomination that seeks to employ them, that the organization employing them can provide for their care and support, and that they are able to minister to a congregation under the auspices of that congregation’s denomination.

To demonstrate this, applicants should provide the following documents, where applicable:

  • Certificate of Incorporation of the employer;
  • Proof of registration as a charity or non-profit;
  • Statement from the religious organization showing:
    • the date and place of founding of the religious organization;
    • length of time in continuous operation in the province or territory of destination;
    • description of the structure of the organization;
    • copies of relevant corporate and society documents;
    • financial statements;
    • copy of residential lease if a residence is not supplied to the foreign national; and
    • other documents which establish the relationship between the religious denomination and the religious worker.

The second type of religious workers are people who are entering Canada to perform charitable or religious work.  Depending on the circumstances, such individuals may be exempt from the Labour Market Impact Assessment (“LMIA“) process, if they are carrying out duties for a Canadian religious or charitable organization and the duties themselves are of a charitable or religious nature (e.g., teachers assistants supplied by a charitable organization to a school because funds were not available to the school to hire).  These individuals can apply for a work permit pursuant to IRPR r. 205(d), which provides that:

205. A work permit may be issued under section 200 to a foreign national who intends to perform work that

(d) is of a religious or charitable nature.

The Temporary Foreign Worker Guidelines (“TFWG“) provide that an individual may be considered to be engaging in charitable or religious work if they meet the following conditions:

  • the duties performed by the individual must be of a charitable or religious nature that help to relieve poverty, or benefit the community, educational or religious institutions. As well, IRCC has updated its manual to specifically include camps that provide programs and services to children and youth who have physical or mental disabilities or who are economically disadvantaged;
  • the organization or institution which is sponsoring the foreign worker will not, itself, receive direct remuneration from any source on behalf of, or for, the services rendered by the foreign worker; and
  • the work goes above and beyond normal work in the labour market, whether remunerated in some manner or not, for example: organizations which gather volunteer workers to paint or repair the houses of the poor may qualify, provided that the work would not otherwise be done, i.e. if the recipients of this work are not able to hire a professional or do the work themselves. L’Arche, which relies on people to live full-time in a group home with people who have developmental disabilities; (workers in the homes are remunerated, but they are committed to taking care of the disabled people on almost a 24-hour basis.) persons who are giving their time to community or religious organizations in a position which would not represent a real employment opportunity for Canadians or permanent residents. (Though it is not mandatory, such work normally entails a requirement for the foreign national to be part of or share the beliefs of the particular religious community where they will work, or to have the ability to teach or share other religious beliefs, as required by the employer..)

The following is an example of an approval under IRPR r. 205(d).  I note that this was not one of my files, as it is not my practice to post my files on this blog.  Rather, this example of an approval was obtained through an Access to Information Act request.

charitablework

It is important to note that a non-profit organization is not necessarily a charitable one.  A charitable organization has a mandate to relieve poverty, or benefit the community, educational, or religious institutions.  While most of these cases are linked to registered charities, being a registered charity with the Canada Revenue Agency is not a mandatory requirement.  Such organizations will face greater scrutiny, however, in determining whether their mandate is to help relieve poverty, benefit the community, educational, or religious institutions.

Of course, foreign nationals seeking to enter Canada to perform religious work may also apply for a Labour Market Impact Assessment if they do not meet one of the above two requirements.

Tips

The following are 6 useful tips for foreign nationals who are considering entering Canada to perform religious work.

  • When you are applying make it clear that you are applying under either IRPR r. 186 or under IRPR r. 205.  Even if you are eligible for Permit A, but you request Permit B, then Immigration, Refugees and Citizenship Canada is not under any duty to provide you with Permit A: Sharma v. Canada (Citizenship and Immigration), 2014 FC 786
  • While religious workers from visa-exempt foreign countries do not need to apply for a visa from outside Canada to work in Canada without a work permit under R186L, they do need to satisfy Port of Entry officers that they meet the requirements of R186L.
  • One of the larger issues that applicants face is whether the employer can support them in Canada.  If the religious organization is small, it is not uncommon for officers to request supporting financial documents.
  • Even if you are eligible to work in Canada without a work permit pursuant to IRPR r. 186(l) you may want to obtain one nonetheless.  Some advantages of having a work permit include the possibility of open work permits for spouses and children, access to provincial health care, dependent children being exempted from having to obtain a study permits, and more.
  • There are several documents which can be useful to show the genuineness of the job offer, including a certificate of incorporation, proof of registration as a charity under the Income Tax Act, copies of the Constitution, financial statements, and proof of ordination.
  • I always recommend that people at least provide a letter from the Canadian religious organization.  Statements from the religious organization should mention the date and place of founding of the religious organization, the length of time in continuous operation in the province, a description of the structure of the organization, the size of the adult congreation, the number of clery employed, the address of the regularl emeting place, schedule fo worship.

Permanent Residency

It is important that people who work under IRPR r. 186(l) not exceed the duties described in that section, which are being responsible for assisting a congregation or group in the achievement of its spiritual goals and whose main duties are to preach doctrine, perform functions related to gatherings of the congregation or group or provide spiritual counselling.  In Kaur v. Canada (Citizenship and Immigration), for example, the Federal Court found that a religious worker who was working in Canada under IRPR r. 186(l) had exceeded her duties by essentially being a religious teacher in a classroom setting at a religious institution. The Federal Court accordingly found that the work experience was unauthorised, and that the foreign national could not count that work experience towards the Canadian Experience Class.


LMIA Exemption for Francophones

On June 1, 2012, Citizenship and Immigration Canada (“CIC“) released Operational Bulletin 429 (“OB 429“).  OB 429 provides that francophones destined to a province other than Quebec who will be working in a high skilled occupation can receive two year significant benefit work permits.  The benefit of a significant benefit work permit is that no Labour Market Impact Assessment (“LMIA“) is required.

To qualify for the LMIA exemption, applicants must:

  • apply at a visa office outside Canada;
  • have been recruited through Destination Canada or other events coordinated with the federal government and francophone minority communities;
  • be going to work in an occupation which falls under National Occupation Classification 0, A or B;
  • have French as his/her habitual language; and
  • be destined to a province other than Quebec.
Importantly, the job itself does not have to require French.
There does not appear to be any limit on how many times the work permit can be renewed.
Depending how broadly the second requirement is interpreted, this could provide a significant advantage to francophone employers and francophones looking to immigrate to Canada.

The legal justification for providing preferential treatment to francophones intending to work outside of Quebec is based on s. 3(1)(b) of the Immigration and Refugee Protection Act (the “Act“), which states that one of the goals of Canada’s immigration system is:

(b) to enrich and strengthen the social and cultural fabric of Canadian society, while respecting the federal, bilingual and multicultural character of Canada;

Although there is no legal reason why this LMIA exemption cannot also apply to anglophones seeking employment in Quebec, people awaiting an Operational Bulletin to this effect hopefully know how to hold their breath for a long time.

[Updated – October 2, 2014]

Please note that the LMIA exemption for Francophones ended on September 30, 2014.

As per the CIC website:

The exemption from a Labour Market Impact Assessment (LMIA) under the International Mobility Program for skilled Francophone workers destined to work in a province other than Quebec will be discontinued.

All applications received on or before September 30, 2014, 11:59 p.m. Pacific Standard Time (PST) will be processed and finalized as per the guidelines provided below. Applications received after September 30, 2014 will not be accepted. Foreign workers already in Canada will also not be able to request an extension under this exemption after September 30, 2014.

http://www.cic.gc.ca/english/resources/tools/temp/work/opinion/francophones.asp

It is not hard to see why IRCC is bringing back the Francophone exemption. As the chart below shows, the percentage of immigrants of Francophone descent outside of Quebec is around 1%.

FrancophoneImmigration

[Updated – June 2, 2016]

On June 1, 2016, the Government of Canada reintroduced the exemption, with essentially the same requirements as before.

http://www.cic.gc.ca/english/resources/tools/updates/2016/2016-06-01.asp


Labour Market Impact Assessments – Recruitment Requirements

Employers wishing to apply for Labour Market Impact Assessments are required to conduct recruitment efforts to hire Canadian citizens and permanent residents.  The Ministry of Economic and Social Development (“ESDC” or “Service Canada“) is very stringent in its recruitment requirements, many of which are not publicly available.  In this blog post I seek to provide a comprehensive overview of Service Canada’s recruitment requirements, including providing a summary of the publicly available information on the Service Canada website, as well as summarizing and reproducing internal ESDC directives.

I would like to thank Jacobus Kriek, an immigration consultant with Matrixvisa Inc., for providing me copies of the internal Service Canada directives and e-mails that he has obtained.

Please note that what I have reproduced below should not be viewed as legal advice by ESDC or Service Canada.  The reproduction of the material below has not occurred with the affiliation of the Government of Canada, nor with the endorsement of the Government of Canada. As well, given the nature of relying on internal documents, some of the information may be out of date.

Continue reading “Labour Market Impact Assessments – Recruitment Requirements”



LMIA Exemption for the Performing Arts Sector

On February 3, 2016, Immigration, Refugees and Citizenship Canada (“IRCC”, previously “CIC”) introduced new Labour Market Impact Assessment (“LMIA“) exemptions, and expanded the Business Visitors category for certain foreign nationals so that they may work in Canada without a work permit.

The specific changes are:

    • the introduction of a LMIA exemption for prospective foreign workers whose work is essential to a television or film production and would create and maintain significant economic benefits and opportunities to Canadians and permanent residents;

 

    • the introduction of a LMIA exemption to prospective foreign workers working in dance, opera, orchestra and live theatre whose work contributes to competitive advantages and reciprocal benefits for all Canadians, including Canadian performing artists and performing arts organizations; and

 

  • that foreign nationals who are employed as film producers, essential personnel for commercial (i.e,, advertising) shoots, and film and recording studio users may now be considered as Business Visitors.

The LMIA exemptions described above take affect on February 17, 2016.  The expansion to the Business Visitor category is effective immediately.

Significant Benefit Guidelines

As noted above, starting on February 17, 2016, an LMIA exemption will exist for prospective foreign workers whose work is essential to a television or film production and would create and maintain significant economic benefits and opportunities to Canadians and permanent residents.

The IRCC website notes that such positions are typically unionized and pay above the provincial median wage for all occupations.

Applicants are advised to provide both a letter of support from the production as well as a letter from the relevant union or guild.

Work permits will be valid for the duration of the intended employment, or until the expiry of the foreign national’s travel document, whichever is earlier.  If there is no end date to the duration of intended employment, then the work permit will be valid for up to two years, or until the expiry of the foreign national’s travel document.

Reciprocal Employment Guidelines

As noted above, starting on February 17, 2016, an LMIA exemption will exist for prospective foreign workers working in dance, opera, orchestra and live theatre whose work contributes to competitive advantages and reciprocal benefits for all Canadians, including Canadian performing artists and performing arts organizations.

Evidence of reciprocal employment opportunities include:

    • where an offer of employment clearly indicates that the applicant’s job offer is in the dance, opera, orchestra or live theatre disciple of the arts, and that the employer is a current recipient of annual or multi-year operational funding support from the Canada Council for the arts or of financial support via parliamentary appropriation;

 

    • where there is a letter (or other evidence) submitted by the foreign national that has been provided by an applicable Canadian performing arts representative or service organization and that proves reciprocal international opportunities exist for Canadians in that discipline.  A 1:1 ratio is not necessary; rather, proof that similar opportunities exist for Canadians internationally is sufficient; and

 

  • where the applicant can provide a copy of a formal agreement between a Canadian performing arts organization and an international performing arts organization that stipulates the employment of particular workers who possess intellectual property related to the production.

Work permits will be valid for the duration of the intended employment, or until the expiry of the foreign national’s travel document, whichever is earlier.  If there is no end date to the duration of intended employment, then the work permit will be valid for up to two years, or until the expiry of the foreign national’s travel document.

Business Visitors 

As noted above, foreign nationals who are employed as film producers, essential personnel for commercial (i.e,, advertising) shoots, and film and recording studio users may be considered as Business Visitors.

The film producers must be employed by foreign companies.

As well, the essential personnel (e.g., actors, directors, technicians) must be entering Canada for a short duration, which on the IRCC website is stated as being no longer than two weeks.  The commercial must be foreign-financed.

This Business Visitor category is in addition to the existing work permit exemption for performing artists, which includes:

More information about the new LMIA exemption and Business Visitor categories can be found here.

Please contact us if you have any questions or concerns about his upcoming change.


Significant Benefit Work Permits

Most work permit applicants to Canada will typically need their potential employer to first obtain a positive or neutral Labour Market Impact Assessment (“LMIA“) before they apply for their work permit.  This is an arduous process which generally requires that the potential employer conduct recruitment, pay a $1,000.00 processing fee, a mandatory interview, and uncertainty for a period of several weeks to months.

However, there are several exemptions to the LMIA requirement.  One of these exemptions is where the entry of the prospective foreign worker would create or maintain significant social, cultural, or economic benefits or opportunities for Canadian citizens or permanent residents.  These work permits are typically known as Significant Benefit Work Permits, or C-10 Work Permits.

The CIC website contains guidance to officers who are processing C-10 Work Permit applications. It states that:

… circumstances sometimes present officers with situations where an LMIA is not available, and a specific exemption is not applicable, but the balance of practical considerations argues for the issuance of a work permit in a time frame shorter than would be necessary to obtain the [LMIA] opinion. [Significant Benefit Work Permits are] intended to provide an officer with the flexibility to respond in these situations. It is imperative that this authority not be used for the sake of convenience, nor in any other manner that would undermine or try to circumvent the importance of the LMIA in the work permit process. It is rather intended to address those situations where the social, cultural or economic benefits to Canada of issuing the work permit are so clear and compelling that the importance of the LMIA can be overcome.

Officers should look at the social and cultural benefit of authorizing entry to Canada for persons of international renown, examining whether a person’s presence in Canada is crucial to a high-profile event, and whether circumstances have created urgency to the person’s entry.

For requests for work permits based on significant economic benefit, where entry into the labour market is concerned, all practical efforts to obtain [an LMIA] assessment should be made before C10 is applied. Foreign nationals submitting an application for consideration under C10 should provide documentation supporting their claim of providing an important or notable contribution to the Canadian economy.

As such, the following are factors that officers typically consider:

  • Whether a LMIA is not available, specifically because the balance of practical considerations argues for the issuance of a work permit in a time frame shorter than it would be necessary to obtain the LMIA, and not simply for the sake of convenience;
  • Whether there is another specific exemption available;
  • Whether the social, economic, and cultural benefits to Canada are so clear and compelling that the importance of a LMIA can be overcome;
  • Whether there is an urgency to the person’s entry;
  • Whether the person’s entry is crucial to a high profile event; and
  • Whether all practical efforts to obtain a LMIA were made.

The following are examples of where Immigration, Refugees and Citizenship Canada (“IRCC“) either approved or refused C-10 Work Permit applications.  I note that these are not my cases, as it is not my practice to post my own files on this blog. Rather, these were obtained through an Access to Information Act request.

A201433267_2015-12-18_08-29-36

sigben

It is important to note that although the policy only discusses economic, social, and cultural benefits, it is not uncommon for other benefits to be considered. In this approval, for example, IRCC considered the ecological benefits to Canada of admitting a foreign worker. sigbenmussel


Business Visitor or Work Permit Required?

The Business Visitor category facilitates the entry of a broad range of individuals who intend to enter Canada to engage in business or trade activities without entering the Canadian labour market. Business Visitors do not need work permits, pursuant to section 186(a) of Canada’s Immigration and Refugee Protection Regulations (“IRPR“), which states that:

No permit required

186. A foreign national may work in Canada without a work permit

(a) as a business visitor to Canada within the meaning of section 187;

IRPR s. 187, meanwhile, states that:

Business visitors

187. (1) For the purposes of paragraph 186(a), a business visitor to Canada is a foreign national who is described in subsection (2) or who seeks to engage in international business activities in Canada without directly entering the Canadian labour market.

Specific cases

(2) The following foreign nationals are business visitors:

(a) foreign nationals purchasing Canadian goods or services for a foreign business or government, or receiving training or familiarization in respect of such goods or services;

(b) foreign nationals receiving or giving training within a Canadian parent or subsidiary of the corporation that employs them outside Canada, if any production of goods or services that results from the training is incidental; and

(c) foreign nationals representing a foreign business or government for the purpose of selling goods for that business or government, if the foreign national is not engaged in making sales to the general public in Canada.

Factors

(3) For the purpose of subsection (1), a foreign national seeks to engage in international business activities in Canada without directly entering the Canadian labour market only if

(a) the primary source of remuneration for the business activities is outside Canada; and

(b) the principal place of business and actual place of accrual of profits remain predominately outside Canada.

Accordingly, the general criteria to be a Business Visitor is that:

(a) the employee must not intend to enter the Canadian labour market;

(b) the employee’s activity must be international in scope; and

(c) the primary source of the worker’s remuneration should remain outside Canada, the principal place of the worker’s employer should be outside of Canada, and the accrual of profits of the worker’s employer should be outside of Canada.

Typical examples of business activities include, but are not limited to, consultation, negotiation, discussion, research, participation in educational, professional, or business conventions, or meetings and soliciting business.

The following is an example of an approval under the Business Visitor category.  It also answers the often asked question of whether a foreigner who owns a business in Canada needs a work permit to simply meet with his Canadian staff.  Please note that this was not my file, as it is not my practice to post my files on this blog. Rather, this was obtained through an Access to Information Act request.

businessvisitor

Intra-Company Trainees and Trainers

IRPR s. 187(2)(b) is not as well known as it should be. As noted above, it provides that foreign nationals who are receiving or giving training within a Canadian parent or subsidiary of the corporation that employs them outside of Canada, does not require a work permit.

The following is an example of an approval under this category. Please note once again that this was not my file, as it is not my practice to post my files on this blog. Rather, this was obtained through an Access to Information Act request.

intracorporate