Last updated on February 21st, 2021
Last Updated on February 21, 2021 by Steven Meurrens
Implied status is perhaps one of the most misunderstood concepts of Canada’s immigration system. Many mistakenly question its legality. Others fail to appreciate its unique requirements, and abruptly find themselves without status. Recent procedural changes and court decisions in Canada have only added to the confusion.
Regulations 183(5), 186(u), and 189 of the Immigration and Refugee Protection Regulations (“IRPR”) provide the legal basis for implied status. In brief, if a foreign worker, international student, or visitor files an application to extend his (or her) status in Canada, then he may remain in Canada on the terms of his original status until Immigration, Refugees and Citizenship Canada (“IRCC”) makes a decision on his extension application.
Accordingly, a foreign worker can continue to work, an international student can continue to study, and a visitor can continue to reside in Canada during IRCC’s processing of the extension application. Considering that as of writing visitor, worker, and student extension applications took IRCC 75, 60, and 42 days respectively to process, the extra time that implied status can allow an individual to carry on with his life in Canada can be significant.
In order to take advantage of implied status, the IRPR requires that an applicant file the extension application before his current immigration document expires. Even submitting an extension application one day too late will mean that a foreign national cannot benefit from implied status. The consequences of this are often quite serious.
As well, an applicant will lose the benefits of implied status if he leaves Canada while IRCC processes his extension application.
The following exchange between an Immigration Representative and the Immigration Representative Portal is an example of how implied status works.
If a Foreign National in Canada with valid temporary resident status applies to extend the period authorized for their stay, per IRPR section 183(5)(a&b) will they benefit from Implied Status by operation of S.183(6) REGARDLESS of what type of temporary resident status (worker, student, visitor) they hold when they apply to extend, and what type of temporary status they are applying for with the extension?
Thank you for your questions.
In order to respond to your questions, we are required to separate the questions by the issues.
Will the applicant benefit from implied status if a foreign national in Canada with temporary resident status applies to extend their period of authorized stay?
Yes. Temporary residents that apply to extend their period of authorized stay in Canada will benefit from implied status until a decision is made on their application by operation of law. It should be noted that if the applicant applies for a different kind of permit (i.e., changing the conditions of their stay), they can no longer conduct any of the activities authorized by the original permit once it expires. Additionally, if the application is refused, the applicant may only remain in Canada until the expiry date of their current temporary resident status. Implied status is actually temporary resident status granted by operation of law. The implied status is triggered when a temporary resident (i.e., visitor, student, worker) applies for an extension of their authorized stay prior to the expiry of their status.
For example, if a foreign national applies to extend their Temporary Resident status as a temporary worker: Section R201 allows foreign nationals to apply for a renewal of their work permit only if the application is made before their present work permit expires and they have complied with all conditions imposed on their entry into Canada.
Paragraph R186(u) authorizes foreign nationals to work without a permit in the event that they submitted an application under section R201, they have remained in Canada after the expiry of their work permit and they have continued to comply with the conditions set out on the expired work permit (other than the expiry date), and a decision on the renewal application has not yet been made.
Note: It is not “implied status” under subsections R183(5) and (6) that allows a foreign national to keep working while their application for extension is in process. The foreign national must meet the requirements of paragraph R186(u) to be able to continue working while their TR status had been extended by operation of law. Paragraph R186(u) applies only until a decision is made on the original work permit renewal application.
Once the original work permit expires, the foreign national cannot submit another application under section R201, because they no longer have a valid work permit. Therefore, they cannot trigger the requirements of paragraph R186(u) if they are submitting an application for restoration with a work permit application.
It should be noted that “status” and “authorization” are separate in the Immigration and Refugee Protection Act (IRPA). A foreign national who submits the “Application to change conditions, extend my stay or remain in Canada as a Worker” application form [IMM 5710] is in effect submitting two applications in one. The foreign national is applying under section R181 for an “extension of status” and under section R201 of to “renew the work permit”. If submitted before the expiry of their present work permit, this combined application has 3 effects:
1. Should a decision not be made on the “application” under section R181 before the expiration of their present status, the foreign national will be allowed to remain by operation of law (implied status) under subsection R183(5).
2. The application for renewal under section R201 triggers the ability for the foreign national to “work without a permit” under paragraph R186(u), unless they leave Canada.
3. Any conditions imposed on the initial work permit carry over into the implied status period under subsection R183(6). For example, if a person held an open work permit, they may continue working for any employer until the new work permit is issued or the application is refused.
A secondary question that arises from the first question:
Is implied Status considered Valid Status generally, and more specifically for the purposes of an Inside Canada Class SCLPC application that includes an application for an open work permit under the Spousal open work permit pilot program?
Possible scenario: (assuming that the Work Permit application is complete and the correct fees are paid) A principal applicant who has valid VISITOR status in Canada, applies within the SCLPC class and includes a Work Permit application. Their SCLPC application was received by a processing office BEFORE their Visitor Status expired. Their Visitor status expires PRIOR to issuance of the Open Work Permit. Is this hypothetical client still eligible to benefit from the 4 month processing of the open work permit, by virtue of having applied to extend their temporary status in Canada prior to the expiry of their current temporary status in Canada?
Yes. Implied status is considered valid status by operation of law.
All temporary residents who apply for an extension of their status under R181 have access to”implied status”. 181 (1) A foreign national may apply for an extension of their authorization to remain in Canada as a temporary resident if
(a) the application is made by the end of the period authorized for their stay; and
(b) they have complied with all conditions imposed on their entry into Canada
There is no discretion or decision made to give implied status it is done automatically by law.
Temporary resident status is maintained by the application for an extension of authorized stay before the expiry of their present status and during implied status. It may be lost and restored; on restoration, the foreign national regains valid temporary resident status.
More specifically, does this client remain in valid status? (assuming the Open work permit is processed and approved. I’m not talking about instances where the application technically never existed because of errors made or incorrect fees paid).
Yes. The foreign national remains in valid status by operation of law until a decision is made on their open work permit application.
Does this client have to apply to extend their VISITOR status in order to remain in valid status? despite having applied to extend their temporary status in Canada, per S.183(5)(6) by way of a Work Permit application) Does anything change if the client is already in Canada on valid status as a WORKER prior to the submission of the SCLPC + IMM5710 application? (Apart from the fact that because they are going from Worker to Worker, they can keep working until a decision is made on the extension application).
No. As indicated above, “status” and “authorization” are separate in the Immigration and Refugee Protection Act (IRPA). A foreign national who submits the “Application to change conditions, extend my stay or remain in Canada as a Worker” application form [IMM 5710] is in effect submitting two applications in one.
In the case of an SCLPC applicant who entered Canada as a visitor and is now applying for an open work permit, the foreign national is applying under section R181 for an extension of status. They are also making an initial work permit application under section R199(f) which effectively requests authorization to change their class to include permission
In the case of an SCLPC applicant who is already in Canada as a worker, there is little change. The foreign national is applying under section R181 for an extension of status and under section R201 to change conditions of their stay as a worker.
We trust this information will assist you.
As the above should hopefully indicate, implied status is a very complicated area of Canadian immigration law. It is constantly evolving. However, it is perfectly legal, is not an abuse, and it is unbelievably important that it be done right.
It is also possible, despite persistant internet rumors to the contrary, to go on implied status after having been on an International Experience Canada work permit. This is affirmed on the IRCC website here – https://www.canada.ca/en/immigration-refugees-citizenship/corporate/publications-manuals/operational-bulletins-manuals/temporary-residents/foreign-workers/exemption-codes/international-experience/canadian-interests-reciprocal-employment-international-experience-canada-bilateral-agreements-arrangements.html
Implied Status and Applying for a Work Permit Upon Re-Entry
As a result of the Federal Court of Appeal decision in Brito v. Canada (Minister of Citizenship and Immigration), 2003 FC 1379, temporary residents from visa-required countries who have implied status and are seeking re-entry to Canada following a visit solely to the United States or St. Pierre and Miquelon are still considered to be visa exempt, as per subparagraph R190(3)(f)(ii). In this case, their period of authorized stay is extended, pending a decision. As such, if they are eligible, they may apply for a new or subsequent work permit at the port of entry.