Question & Answer – Open Bridging Work Permits and Spouses (IR-06)

The following is an e-mail exchange between an immigration representative and Citizenship and Immigration Canada regarding open bridging work permits.  One of the best things that Jason Kenney did as immigration minister was to allow individuals to apply for open work permits if their permanent residence applications had reached certain stages in processing.  (A detailed blog post of mine on Bridging Open Work Permits can be found here.)  As with any new program, questions emerged regarding specific requirements of the Bridging Open Work Permit, including whether spouses can apply.  This is actually the second Q&A on open bridging work permits which I have reproduced.  The first can be found here

Please note that what I have reproduced below should not be viewed as legal advice.  The reproduction of question and answer has not occurred with the affiliation of the Government of Canada, nor with the endorsement of the Government of Canada.

Question – May 14, 2013

Hello,

Could you tell me if Open Bridging Work Permits also apply to spouses of work permit holders?

Thank you.

Answer – May 22, 2013

NO, the Bridging Work Permit is only available to the Principal Applicant.

However, if certain conditions are met by the principal applicant, they will impact the eligibility for the spouse for an
open work permit.

In all cases the Principal Applicants work permit must be valid for longer than 6 months.

For spouses of Federal Skilled Workers, the principal applicant must be performing work which is at a level that falls within National Occupational Classification (NOC) Skill Levels 0, A or B.

For spouses of Provincial Nominee applicants, they are eligible for an open work permit for the duration of the work permit held by the provincial nominee principal applicant, irrespective of the skill level of the principal applicant’s occupation.

For spouses of Federal Skilled Trades, the principle applicant must be performing work which is within one of the qualifying occupations in NOC Skill Level B.

For spouses of applicants in the Canadian Experience Class, they are eligible for an open WP without preconditions to be met by the principal applicant.

For Dependent children of an applicant in any Class, they must obtain a LMO or have a LMO exemption based on their specific situation in order to apply for a work permit.

Because of all the confusion over open bridging work permits, CIC recently released OB 485-A, which answers many of the questions which people have


Question & Answer – Open Bridging Work Permits (IR-01)

The following is an e-mail exchange between an immigration representative and Citizenship and Immigration Canada regarding Bridging Open Work Permits.  One of the best things that Jason Kenney did as immigration minister was to allow individuals to apply for open work permits if their permanent residence applications had reached certain stages in processing.  (A detailed blog post of mine on Bridging Open Work Permits can be found here.)  As with any new program, questions emerged regarding specific requirements of the Bridging Open Work Permit, including whether there are exceptions to the 4 month time-frame.

Please note that what I have reproduced below should not be viewed as legal advice.  The reproduction of question and answer has not occurred with the affiliation of the Government of Canada, nor with the endorsement of the Government of Canada.

Question – May 27, 2013

Dear Sir / Madam,

I would like to enquire about the time of an application for an open Bridging Work Permit.  In Operational Bulletin 485, dated December 15, 2012, it is noted that the processing office will confirm upon receipt of an application that:

  • The PR applications under one of the classes (CEC, PNP, FSWP) has been found eligible;
  • the applicant is currently in Canada; and
  • it is confirmed that the applicant currently holds a valid WP that will expire within the next 4 months and there are no other issues of concern.

For an applicant who has been found eligible for Permanent Residence as FSWP, whose Work Permit does not expire until ___ but has recently been laid off, is there an exception to the 4 month timeframe which would allow them to file an Open Bridging Work Permit application now in 2013, perhaps under Humanitarian & Compassionate considerations set out in section 25 of the Immigration and Refugee Protection Act? Or will the applications only be accepted if a Work Permit is set to expire in 4 months, without exception?

Thank you in advance for your response to this question. 

Regards, 

Answer – May 29, 2013

Thank you for four inquiry.

As specified in Operational Bulletin 485, to be eligible for a bridging open work permit, the foreign naitonal must have valid status on a work permit that is due to expire within 4 months. There are no exceptions to this requirement. 

In the situation you’ve outlined below, the foreign national would presumably seek out a new employer and apply for a new work permit before the expiry of their current employer-specific work permit in 2015. 

It is not clear why the representative thought that H&C considerations could be used to overcome the 4 month requirement.  As I blogged about here, recent changes to Canadian immigration law mean that humanitarian & compassionate considerations may only be considered in permanent resident applications.


RIMBits Revealed (July 2010)

The following are some excerpts from the July 2010 RIMbits.  RIMbits are messages sent from National Headquarters to missions overseas.  The July 2010 RIMbits on admissibility consisted of eight questions and answers or bulletins.  I have reproduced three of them for free below.

Please note that the questions and answers below should not be viewed as legal advice.  Rather, they are simply reproductions of how CIC senior management answered specific questions from visa offices in July 2010.

Canadian citizen Visiting Forces Act applicant

Q. We ask for your opinion on the process for a Canadian dual citizen and his family who wish to enter Canada under the Act on Visiting Forces at the request of the ________ government. The applicant and spouse currently have official _____  passports. The sons, also dual citizens, have an ordinary ____ passports stating “son of government agent.” With what documentation should the applicant and his sons travel? Obtaining proof of Canadian citizenship for the children could take 14-16 months.

Also, the spouse has no status in Canada. The Foreign Worker Guide indicates that dependents of people who are in Canada under the Visiting Forces Act qualify for an open work permit. As the spouse of a Canadian citizen, is the wife still eligible for a work permit or study permit?

A. The Canadian citizens (principal applicant and sons) could arrive in Canada with their Official passports ______ with no permits or visas; however, the Port of Entry will have to investigate again their status as Canadian citizens. Therefore, I suggest that the applicant and his children be issued Facilitation visas so that CBSA POE will have the full story at their fingertips. The visa-exempt spouse, as accompanying dependent under the Visiting Forces Act, should be issued an open study-work permit.

Permanent residence determinations -accompanying a now-deceased spouse

Q. We need your expertise and clarification on a permanent residence determination dealing with a permanent resident accompanying a Canadian citizen spouse outside of Canada.

The 5-year period of consideration is from _____ to _____ . We determined that the applicant had only spent 171 days in Canada and did not meet the residency obligations. However, until ______ when the applicant’s spouse died, he was accompanying a Canadian citizen.

My understanding for accompanying is that the spouse/common-law partner must be alive. If the spouse or common law partner is deceased and has been deceased for a number of years should we be counting the time spent while alive for residency determinations?

A. Yes, you should count the time the applicant was accompanying a living Canadian citizen. When determining physical presence in Canada, each part of a day in which a person is accompanying a Canadian citizen outside Canada counts as a day in Canada. In this case, the time spent accompanying the Canadian citizen spouse outside of Canada up to and including _______ should be considered.

A similar case can be made for permanent residents who were previously married to Canadian citizens. The period of time where the permanent resident accompanies a Canadian citizen spouse should count towards residency requirements until the date of a legal separation or, if no legal separation exists, the date of the divorce decree.

Medical inadmissibility

Q. I would like to find admissible an applicant that the medical officer has found inadmissible for excessive demand for social services (MOS).

The medical officer indicates that this individual is inadmissible for excessive demand on social services.

I disagree. I am not satisfied that this person is medically inadmissible, and I believe that this decision is mine under the Act and related jurisprudence. However, there are no instructions on how to issue a visa on a case where there is an MOS. I do not plan to send a procedural fairness letter, because I am not satisfied that there is inadmissibility.

A. Ultimately, it is the visa officer that determines if an individual is inadmissible, not the medical officer. If there is, in your opinion, sufficient information on file to counter the excessive demand component of an MOS assessment, then there would appear to be little gained by going through the procedural fairness exercise. You may want to confer with your IPM on whether it is appropriate to waive this administrative step.

For issuing a visa, you can “override” the MOS assessment in CAIPS. It is recommended that you record your argument for visa issuance in CAIPS notes.

OB 63B addresses this issue:

Coding

At the end of the process, if the applicant has satisfied the immigration/visa officer that they have the ability and intent to mitigate the cost of the required social services, the immigration/visa officer will enter a positive medical decision code “1” in FOSS or CAIPS, as applicable. Although the medical assessment code will remain unchanged (MOS), CAIPS will permit a Final Decision code “1” (visa issued).


RIMbits Revealed (June 2010)

The following are some excerpts from the June 2010 RIMbits.  RIMbits are messages sent from National Headquarters to missions overseas.  The June 2010 RIMbits on admissibility consisted of six questions and answers.  I have reproduced two of them for free below.

Please note that the questions and answers below should not be viewed as legal advice.  Rather, they are simply reproductions of how CIC senior management answered specific questions from visa offices in May 2010.

Appeals Allowed and Resumption of Examination

Q. Our FC1 case went to appeal at the IAD and was allowed. The decision states that the Panel is disgusted with the behaviour of the appellant and the applicant and that their behaviour cries out for further investigation, but it is not within the mandate of this panel to carry out such an exercise.

In light of this written comment in the decision, we would like to know if we can re examine and refuse the application as a marriage of convenience. We originally refused under A40(1)(a).

A. When the application for admission of a member of the family class is refused, the sponsor may appeal to the IAD on either legal or humanitarian grounds. Since the refusal may occur at several different stages, the allowance of the appeal results in resumption of the examination by the visa officer, not outright approval of the application. The important limitation is that the visa officer cannot reconsider matters upon which the board has decided. The difficulty in some instances, however, is figuring out exactly what the board decided. So, for example, in the case of King v. Canada (1996 115 FTR 306), the dispute was over whether or not a visa officer could refuse an applicant following a ruling that an initial refusal for medical reasons was procedurally flawed. The Court ruled that the only thing that was res judicata was the initial medical opinion. Thus, a second refusal by the visa officer for medical reasons was reasonably open to the visa officer, based upon the evidence. Recently, the Federal Court of Appeal ruled that a visa officer can refuse a case because of new evidence regardless of the basis for which the IAD ruled in favour of the applicant. In Shu Foo Au v. M.C.I. (A-229-01) 1 the Court of Appeal cautioned visa officers to ensure any subsequent refusal after a successful appeal to the IAD was based upon something significant and new; otherwise there would be no finality to decision making.

http: //reports. fja .gc.ca/enq/2002/2002fca8/2002fca8.html

Military Service and Definition of Dependency

Q. We received an IAD decision where the Member approach to the issue of obligatory military service, effectively suggesting that it is a matter of statutory interpretation to conclude that mandatory military service should be considered equivalent to full time studies for the purposes of the definition of dependent child (R2).Could you please advise if we should continue to follow this interpretation?

A. Under the old Immigration Act, where a person had interrupted a program of studies for an aggregate period not exceeding one year, that person was not considered to have failed to have continuously pursued a program of studies (subsection 2(7) of the Immigration Regulations, 1976). In Moghtader (2002 FCT 296), Justice Nadon held that the cause of the interruption was completely irrelevant; if there was an interruption of studies for more than a year, whatever the cause, then it was considered as a break in the continuity of the program of studies. Although R2(7) was not incorporated into IRPA, nothing indicates that the conclusion of Justice Nadon could not continue to apply under IRPA. Therefore, any interruptions (except for regular school breaks and minor leave of absence) should be considered as a break in continuity of a program of studies. Furthermore, with the introduction of IRPA, the age of dependency was raised to 22 in order to accommodate situations that create longer child dependency, including those where an applicant has been required to perform military duty. However, while conscription military service was contemplated as it relates to dependency up to the age of 22, no exception was created for it in the same way as was for an individual over 22 who is financially dependent on their parents and is engaged in study or is unable to be self-supportive due to a physical or mental condition (R2).


RIMbits Revealed (May 2010)

The following are some excerpts from the May 2010 RIMbits.  RIMbits are messages sent from National Headquarters to missions overseas.  The May 2010 RIMbits on admissibility consisted of seven questions and answers.  I have reproduced three of them for free below.

Please note that the questions and answers below should not be viewed as legal advice.  Rather, they are simply reproductions of how CIC senior management answered specific questions from visa offices in May 2010.

Seized Travel Document

Q) We were notified by the authorities that a permanent resident travelling on a Canadian travel document has been charged with: (1) ______ (2) _____ and (3) _____. According to local authorities, the permanent resident has been released on bail with the condition that she surrender her travel document and that “Stop Orders” are placed with the Immigration exit controls at airports.  We have been formally requested not to issue a new travel document to this permanent resident “until the matters have been disposed.”  

As the charged person is not a Canadian, the Consular Section has referred this case to us.  Although she has not done so at this point, it is possible that in the near future, this permanent resident may request from the visa office a Permanent Resident Travel Document or other documents to facilitate her return to Canada.  Would you have any advice on what we may and may not consider if the permanent resident applies for a PRTD before the judicial proceedings have come to a conclusion? 

(A) The permanent resident’s Canadian travel document has been seized by local authorities in connection with a legal matter.  It is not lost or stolen, and she will get it back when the legal process is completed.  Thus, even if Passport Canada issued replacement travel documents overseas, it would not be inclined to do so in this case.

To issue a PRTD, a travel document is required.  Although the permanent resident might meet residency requirements for a PRTD, her circumstances would preclude a Single Journey Travel Document.  Avoiding prosecution is not the exceptional circumstance usually required for issuance of a SJTD.

IAD-granted special relief overcoming the requirement for an ARC

(Q) The subject arrived in Canada and was accepted as a Convention refugee five years later.  His application for landing was later refused, however, due to multiple criminal convictions.  He was ordered deported at his appeal hearing and the IAD concluded that he was a danger to Canadian society. 

The subject submitted an FC1 application to our office; this application was refused for criminal inadmissibility pursuant to paragraphs 36(1)(a) and 36(2)(a) or IRPA.  Subsequently, the subject was given a pardon and the IAD allowed the appeal.  

We would like to confirm that we are not bound by the IAD’s favourable comments to grant an ARC.

(A) Although the IAD does not have the jurisdiction to consider the requirements to obtain an ARC on its own, it does have the jurisdiction through its authority under A65 and A67(3) to consider whether special relief should be granted to members of the family class.  Special relief may overcome the requirement to obtain an ARC.  In this case, the IAD found that the applicant was a member of the family class.  The requirement to obtain an ARC was put before the IAD and consequently, the IAD was required to consider this in rendering its decision.

Hong Kong “Spent” Criminal Convictions

(Q) From time to time we see police certificates which list prior convictions with the note that they are considered spent according to s. 2(1) of the Hong Kong Rehabilitation of Offenders Ordinance.  Does the Hong Kong ordinance have the same effect as the Canadian and UK provisions?

(A) A spent conviction in Hong Kong is not equivalent to a pardon in Canada.  The equivalent offence under the Canadian Criminal Code should be looked at in determining admissibility as usual.

The issue was raised and settled in Federal Court in “Kan v. Canada”.

Briefly, in the Burgon decision (referred to in Kan), the courts ruled that British legislation did create the same condition as a pardon and that individuals rehabilitated under this legislation were not inadmissible.  The argument was made in Kan that the Hong Kong ordinance had the same effect.  However, the Federal Court determined that subsection 2(1) of the Rehabilitation of Offenders Ordinance is not equivalent to a pardon in Canada because it only has effect until the individual is again convicted of an offence in Hong Kong.  Further, subsection 2(1) is subject to numerous specified exceptions and does not have the effect of “cleansing the individual of any stain that the conviction caused” (Burgon).

Applicants may inadvertently incorrectly declare that they do not have any convictions believing that a “spent” convictions means that it no longer exists.


Enforcing Removal Orders and Authorization to Return to Canada: Scenarios, Questions, and Answers

One of the more common questions that I am asked is when people who have been told  by the Government of Canada to leave Canada need to submit an Application for Authorization to Return to Canada (“ARC”) before they return.

I have obtained a copy of internal Citizenship and Immigration Canada material which addresses some of these questions, and which I have adapted and produced below.  Please note that the material below has been adapted from a document dated 2009-10.  It is from an official work by the Government of Canada which was obtained through Access to Information and Privacy Act Request.  I have reviewed it and believe that it is correct and current. However, the scenarios below should only be used for informational purposes.  It is NOT legal advice. As well, the reproduction of the training materials has not occurred with the affiliation of the Government of Canada, nor with the endorsement of the Government of Canada.

Scenario 1

Tiger Johnson, a citizen of the USA,was issued a Departure Order on August 4, 2008.  When he left Canada, he did not confirm his departure with the Canada Border Services Agency (“CBSA”).   In 2012, he shows up at the Canadian Consulate in Los Angeles and tells an officer that he now wants to confirm his departure from Canada since he forgot to do it when he left in 2008.

Can the Officer now enforce the removal order?

No. Regulation 240(2) of the Immigration and Refugee Protection Regulations provides that Mr. Johnson must apply for a visa or for an authorization to return to Canada in order for an officer outside Canada to enforce a removal order.

Scenario 1(b)

A week later, Tiger Johnson returns to the LA Consulate and submits a letter explaining that he would like to go to Canada to attend an agricultural fair for work.  He also submits 400$ and a completed ARC application with the required supporting documents.   In addition, he provides evidence of a used boarding pass dated August 30, 2008, for a flight from Toronto to Los Angeles which he had booked himself. He also submits a copy of a signed lease dated Sept. 1, 2008 for his apartment in Los Angeles.

Does he need to apply for ARC even though he has shown that he left Canada within 30 days of the Departure Order being issued? 

Yes.  His departure order became a deportation order because it was not enforced within 30 days.  His failure to attend at CBSA means that he now needs ARC to return to Canada even though he complied with the “spirit” of the Departure Order.

Can the officer at the consulate enforce the removal order? 

Yes.  Since Mr. Johnson did not confirm his departure out of Canada with an officer, and since he has now applied for ARC, the LA Consulate can enforce the removal order.

Scenario 2

Arthur Lagaffe, a French citizen, was issued a Departure Order in 2004.  He never complied with it.  In 2008, he was arrested in Montreal for a speeding ticket and was immediately detained and handed over to CBSA. He was deported on 4 July 2008 on an Air France flight to Paris.  His departure was confirmed by CBSA. His air ticket was paid for by the Department. In Mr. Lagaffe’s letter, he now indicates that he would like to return to Canada since his departure was rushed and he needs to collect some belongings.

Does he need to apply for ARC?

Yes. Because his Departure Order was not enforced within 30 days it became a Deportation Order, and he needs ARC.

Does Mr. Lagaffe need to pay back the government for removal costs?

Yes.   He has to pay 1500$, the amount proscribed by law.  However, he is only legally required to pay this if his ARC application is approved.

Scenario 3

Pablo Rodriguez submits an application for a work permit in 2012.  The reviewing officer sees that he was issued an Exclusion Order on September 4, 2008.  He was issued this removal order because he submitted his application for a work permit extension after his status had already expired.  Pablo’s passport shows that he left Canada on September 11, 2008. However, in his haste to depart Canada he says that he forgot to confirm his departure with CBSA.  Pablo’s representative provided a letter of explanation and indicated that Pablo does not require ARC since more than 1 year has elapsed since his exclusion order was issued.

Is Pablo’s representative right in stating that Pablo does not require ARC 

No.  The Exclusion Order was not enforced because Pablo did not confirm his departure out of Canada.  The 1-year period only starts when the Exclusion Order is enforced. The Officer reviewing the work permit application will enforce the removal order, and the 1-year period will start from that date.

Scenario 4

Park Lee Kim, a 19-year old South Korean national, applies for a study permit so that he can attend the University of British Columbia.  He was previously issued a Deportation Order as a result of being an accompany family member of an individual who was deported from Canada for being involved with organized crime.

Does Park Lee Kim need to apply for ARC? 

No.  Regulation 226(2) of the Immigration and Refugee Protection Regulations exempts family members against whom a deportation order was issued as the result of a deportation order issued against the principal applicant from having to obtain ARC.


Operational Bulletin 315 (Internal) – Cancellation of Visas in Crisis Situations

Not all Citizenship and Immigration Canada Operational Bulletins are public.  Our firm has a small collection of internal bulletins.  I have published one below which provided guidance to officers on how to cancel visas.  The bulletin appears to have been motivated by the Arab Spring.


ATIP Results for CAPIC Presentation

I will be presenting in Vancouver tonight at the Canadian Association of Professional Immigration Consultants annual general meeting  on the recently changed Federal Skilled Worker Class and the Canadian Experience Class.  This follows up on a presentation I made on the same topic at the Canadian Bar Association annual immigration conference in Montreal.

As part of my presentation, I have made available the following ATIP result publicly available.  This ATIP contains training manuals and internal procedures used at Citizenship and Immigration Canada’s Centralized Intake Office in Sydney, Nova Scotia.  It can be viewed by clicking the link below.

ATIP CIO TRAINING MANUALS – https://s3.amazonaws.com/cdn.stevenmeurrens.com/docs/compressed.PDF

I have also reposted the following copies of ATIP results which I made available for the Canadian Bar Association conference in Montreal.

ATIP 1 – https://s3.amazonaws.com/cdn.stevenmeurrens.com/docs/ATIP1.PDF

Contains:

  • An e-mail discussion on substituted evaluation;
  • Several e-mail discussions regarding issues with the PhD program;
  • Processing delays with the CEC;
  • Issues with the 2D barcode and GCMS;
  • Addressing problems with Indian Birth Certificates;
  • and more.

ATIP 2 – https://s3.amazonaws.com/cdn.stevenmeurrens.com/docs/ATIP2.PDF

Contains:

  • An e-mail discussion on working overtime to process capped applications;
  • Clarifying the use of Academic IELTS;
  • E-mails on processing reconsideration requests; and
  • Several OBs (most already public, and some not).

ATIP 3 – https://s3.amazonaws.com/cdn.stevenmeurrens.com/docs/ATIP3.PDF

Contains:

  • GCMS Shortcuts and Tips;
  • Case Studies on Removal Orders and ARC;
  • Cheat Sheet on Calculating the Start of the 5 Year Period for Rehab;
  • Training guides for misrepresentation;
  • Assessing medical specializations and professional degrees;
  • Assessing Skilled Workers (Islamabad Caseload);
  • Exercises on assessing Ministerial Instructions;
  • Federal Skilled Worker Cheat Sheet;
  • C-50 Summary;
  • Australian Police Certificates;
  • Criminality in the UK, equivalency sheets, and a whole lotta rehab stuff;
  • War Crimes (including a chart of every organization the courts have upheld as being brutal or non-brutal);

Please note that the ATIP results above are copies of official works by the Government of Canada which were obtained through Access to Information and Privacy Act Requests, and to my knowledge is not otherwise publicly available.  While I believe that most of the data is still current, I cannot be assured of this, and some programs may have changed lately.  The documents should only be used for informational purposes current as to the date that they were originally produced.  The reproduction of these documents has not occurred with the affiliation of the Government of Canada, nor with the endorsement of the Government of Canada.