The Inside Canada vs. Outside Canada Sponsorship Process

One of the quirkier features of Canadian immigration law is the distinction between what is generally referred to as the “Inside-Canada Sponsorship” process and the “Outside-Canada Sponsorship” process.  The biggest myth is that if a couple is residing in Canada then they must use the “Inside-Canada Sponsorship” process.  This is not true.  However, each program contains advantages and disadvantages vis-a-vis the other, and I have provided a list of the key features and requirements of each program below.

 

Inside-Canada Process

Outside-Canada Process

The spouse/common-law partner must be in a genuine, conjugal relationship that was not entered into for the primary purpose of acquiring an immigration benefit. The spouse/common-law partner must be in a genuine, conjugal relationship that was not entered into for the primary purpose of acquiring an immigration benefit.
The spouse/common-law partner must reside together in Canada. The spouse/common-law partner do not have to reside together in Canada.  As well, once a common-law relationship is established, periods of separation will not change their common-law status if there is a short separation that does not sever the common-law partnership.
The applicant must live with the spouse/common-law partner inside Canada during the duration of processing. The applicant can live with the spouse/common-law partner inside Canada during the duration of processing, but does not have to.
The immigration paperwork is sent to a processing center inside Canada, and remains in Canada. The immigration paperwork is sent to a processing center inside Canada, and it then may be transferred to a visa post outside of Canada.
If the applicant has valid temporary resident status in Canada, and submits an application to extend that status inside Canada with the permanent residence application, then the applicant will have implied status during the processing of the permanent residence application, provided he/she does not leave Canada. If the applicant has valid temporary resident status in Canada, he/she must maintain his/her status. The process is separate from the permanent residence application, and there is no implied status for the duration of processing.
Immigration, Refugees and Citizenship Canada will process the application even if the applicant does not have valid temporary resident status in Canada.  If an individual has an application in processing, and is detained by the Canada Border Services Agency for being without status, then the applicant will generally benefit from a 60 day deferral period, and Citizenship and Immigration Canada will endeavour to process the permanent residence application within 60 days. Immigration, Refugees and Citizenship Canada will not process the application if the applicant does not have valid temporary resident status in Canada.
The current processing time is 12 months.  The Applicant will receive “first-stage approval” at around the half-way point if it is determined that the spouse/common-law partnership is bona fide, and the applicant will be entitled to an open work permit. Processing times vary depending on the visa post, and range from 4 months to 38 months.   There is no first-stage approval for the issuance of open work permits.
There is currently a pilot project in place to provide work permits to applicants who have valid temporary resident status after 2ish months of processing. The permanent residence application is completely separate from any ability to work in Canada.
There is no appeal right to the Immigration Appeal Division.  The only recourse is an application to Federal Court for judicial review. There is a general appeal right to the Immigration Appeal Division, except for refusals based on serious criminality, terrorism, national security, espionage, and similar serious matters.  The only recourse in those situations is an application to Federal Court for judicial review.
If the applicant leaves Canada and is for whatever reason denied re-entry by the Canada Border Services Agency, then the permanent residence application will be refused, and the applicant must start over from outside Canada. If the applicant leaves Canada and is for whatever reason denied re-entry by the Canada Border Services Agency, this will generally not impact the permanent residence application.

Can People Working Without Status Enforce Contracts?

The Ontario Labour Relations Board (the “OLRB“) has just released a fascinating decision which involves the interplay between immigration and employment law.  The case involved a German foreign national who entered into an employment agreement with Essar Steel Algoma (the “Employer“) prior to Citizenship and Immigration Canada (“CIC“) issuing him a work permit to work for the company.  Things did not work out between the Employer and the foreign national, and the Employer terminated the relationship.  The United Steelworks of America (the “Union“) filed a grievance, and the issue of when the foreign national became an employee of the Employer arose.

The OLRB decision involved numerous factual determinations involving contested issues of when the foreign national alerted the Employer that he was a foreign national who required a work permit, whether the Employer promised the foreign national that obtaining a Labour Market Opinion (“LMO“) would be easy, and whether the Employer rescinded the foreign worker’s job offer upon the LMO being rejected.

Lurking in the background of these factual disputes was the legal issue of “when does a foreign national become an employee of an employer?”

The Union argued that as a matter of contract law a person becomes an employee of an employer at the instant when he accepts an unconditional offer of employment, even if the offer contemplates that he will not actually commence work for a period of time.  The Union further argued that there was no necessity for the person hired to have actually started work in order to be considered an employee.

The Employer argued that its employment agreement with the foreign national was illegal and unenforceable by reason of the foreign worker’s lack of a valid work permit. It further argued that the foreign national could not have accepted the offer because he did not have a work permit.

On the issue of whether the job offer was illegal, the OLRB found that it was not.  In doing so, the OLRB had to reconcile the fact that Canadian immigration law makes it illegal for a Canadian employer to employ a foreign national who is not authorized to work, yet at the same time generally requires a foreign national have a job offer with a Canadian employer before CIC can issue the foreign national a work permit (!).  The OLRB concluded that:

It would be easy to contrast sections 30(1) [of the Immigration and Refugee Protection Act, which states which states that a foreign national may not work in Canada unless authorized to do so] and 124(1)(c) of the Act [which makes it a crime to employ a foreign national not authorized to work], and reach the highly technical conclusion that s. 30(1) only prevents a foreign worker from working for a Canadian employer without a work permit, whereas s. 124(1)(c) prevents a Canadian employer from employing a foreign worker who does not have the appropriate work permit, whether that foreign worker performs work or not.  A strict reading of the two sections, and the different terminology employed, might lead to the conclusion that a Canadian employer could not have any kind of employment relationship with a foreign worker who did not have the appropriate work permit, and even that an offer of employment to a non-permit holding foreign worker would be illegal.

Such an interpretation, however, takes no account of the regulations under the Act, which clearly advert to the possibility that a job offer might be made to a foreign workers in advance of the issuance of a permit, and the requirement that the employer describe its job offer on the application for an LMO.  Moreover, the regulations, and the LMO itself (which must be issued before a work permit can be obtained), require that the employer comply with the terms of the job offer, except where it has reasonable justification for its failure to do so.  Further, it would be the height of absurdity to require an employer to take all of the steps necessary to obtain a positive LMO in respect of a foreign worker without having discussed with the worker the offer it was prepared to make, and having received from the worker an indication that he or she was prepared to accept those terms.  

I therefore conclude that, had the May 18 job offer not been rescinded, there would have been nothing illegal in the employer making a job offer to the grievor, or in his indication of acceptance of that offer.

[Emphasis Added]

However, while the job offer was not illegal, the OLRB nonetheless found that it did not create an employment relationship because the foreign national lacked the capacity to accept the offer.  The OLRB noted that:

However, the grievor’s acceptance of the offer would not, in these circumstances, create an employment relationship.  The grievor, in my view, was not in a position to finally accept the offer until such time as he had a work permit which permitted him to do so.  One of the purposes of the Immigration and Refugee Protection Act is to ensure that a foreign worker does not deprive a legal Canadian resident of a job which the Canadian is able and willing to perform.  This is the reason for the requirement that the job be advertised in Canada in advance of, and in support of, an application for an LMO and the subsequent issuance of a work permit.  The lack of such advertising was the reason that the employer’s first application for an LMO with respect to the grievor was rejected.  In my view, therefore, the grievor was not legally competent to finally accept the employer’s offer until August 4, when he obtained his work permit.  Thus, even absent the rescission issue, the employment contract could only have become effective on that date; and

This decision should not be interpreted as being that foreign workers who do not have authorization to work cannot enforce the terms of their employment agreements.  Such a principle would be contrary to public policy, and in any event even if the employment agreement were unenforceable the principle of unjust enrichment would likely necessitate enforcement of the contract.  It could, however, potentially have far reaching implications on the enforceability of job offers to foreign nationals prior to work permit issuance, and the ability of employers to rescind such offers.