Open Spousal Work Permits

In a previous blog post I wrote about how Immigration, Refugees and Citizenship Canada (“IRCC”) was increasingly focusing on genuineness in open spousal work permits.

On September 27, 2021 IRCC updated its webpage to reform the open spousal work permit program.

Regulation 205(c)(ii) of the Immigration and Refugee Protection Regulations provides that:

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

(c) is designated by the Minister as being work that can be performed by a foreign national on the basis of the following criteria, namely,

(ii) limited access to the Canadian labour market is necessary for reasons of public policy relating to the competitiveness of Canada’s academic institutions or economy.

Immigration, Refugees and Citizenship Canada (“IRCC“) offers specific categories of work permits for genuine spouses or common-law partners of principal foreign nationals. These permits, often referred to as open spousal work permits, allow spouses or partners to work in Canada while their loved one is employed or studying in the country.

However, it’s important to note that dependent children are not eligible for open spousal work permits. These permits are exclusively available to spouses or common-law partners, providing them with the flexibility to seek employment across various fields in Canada.

Principal Foreign Nationals

On September 27, 2021, IRCC introduced a key update clarifying the definition of a “principal foreign national.” The principal foreign national is identified as the first member of a couple to obtain a study or work permit or to be authorized to work under section 186 of the Immigration and Refugee Protection Regulations (excluding paragraph R186(w)).

Under this new clarification, the principal foreign national is no longer eligible to obtain a spousal open work permit under the C41 or C42 categories (described in more detail below) based on their dependent spouse’s spousal open work permit. This update is crucial for couples navigating Canada’s immigration system, as it impacts eligibility for spousal work permits.

The IRCC website states:

For example, if the principal foreign national is a study permit holder and the dependent spouse obtains an open work permit under LMIA exemption code C42 for spouses of study permit holders, the study permit holder can not quit schooling and obtain a work permit in the C41 spousal category on the basis of their spouse’s C42 open work permit and employment in a NOC 0, A or B occupation.

Genuine Relationship

A foreign national shall not be considered a spouse or a common-law partner of a person if the marriage or common-law partnership (a) was entered into primarily for the purpose of acquiring any status or privilege under the Act or(b) is not genuine

The IRCC website states that if officers have concerns as to genuineness of the relationship, they may request further documentation or information to confirm that the relationship between the dependent spouse or common-law partner and the principal foreign national is genuine and is not a relationship of convenience. It is as of writing unclear whether this imposes a positive duty on officers where they have concerns.

Please see my previous blog-post referenced above for information about how IRCC assesses this.

C-41 Open Spousal Work Permits – Skilled Workers

A foreign national is eligible for an open spousal work permit if the person is in a marriage or common-law relationship that is genuine with a principal foreign national and the principal foreign national:

• holds a valid work permit (employer-specific or open under a non-spousal category) or is authorized to work in Canada without a permit;
• is authorized to work in Canada for a period of at least six months after the spousal open work permit application is received;
• is employed in one of the following :
  • a high-skilled occupation;
  • any occupation classified as NOC 0, A, B, or C when accepted in one of the Atlantic Immigration Program streams;
  • any occupation and holds a formal nomination pursuant to a federal-provincial-territorial agreement concerning permanent residence; or
  • any occupation and holds a selection certificate for permanent residence as a skilled worker pursuant to the Canada-Quebec Accord; and
• is physically residing or plans to physically reside in Canada while employed.

There are special rules for bridging open work permit holders described here.

C-42 – Spouses or common-law partners of study permit holders

Spouses or common-law partners of certain foreign nationals holding a study permit and enrolled full-time in post-graduation work permit-eligible programs at designated institutions may qualify for an open work permit under LMIA exemption category C42. This category, designated by the Minister, is specifically for spouses who are not themselves study permit holders engaged in full-time studies.

To apply for a spousal open work permit, the following documentation is typically required:

• Proof of being the genuine spouse or common-law partner of the study permit holder.
• Evidence that the principal foreign national is attending a designated learning institution.
• Confirmation that the principal foreign national is actively engaged in full-time studies in a program and institution eligible for a post-graduation work permit. Eligible institutions include:
  • Canadian public post-secondary institutions (e.g., colleges, trade or technical schools, universities, CEGEP in Quebec).
  • Private post-secondary institutions in Quebec that operate under the same rules as public institutions.
  • Private or public secondary or post-secondary institutions in Quebec offering qualifying programs of 900 hours or longer leading to a diploma of vocational studies (DVS) or an attestation of vocational specialization (AVS).
  • Canadian private institutions authorized by provincial statute to confer degrees (e.g., bachelor’s, master’s, or doctorate), provided the study program leads to a degree recognized by the province.

It’s important to note that if the principal foreign national is enrolled in a private post-secondary program or institution outside of those listed above, the spouse or common-law partner is not eligible for a spousal open work permit.

As the following IRCC IMMREP Q&A indicates, an open spousal work permit remains valid even if the principal study permit holder stops studying.

Sample E-mail Demonstrating Factors

The following is an e-mail which shows some of the factors that visa officers consider in assessing open work permit applications for the spouses of students.

Processing Statistics

1A-2023-08617

Jurisprudence

In Vahdad v. Canada (Citizenship and Immigration), 2024 FC 2009, the Federal Court ruled that open spousal work permit applicants need to demonstrate that their partner in Canada is employed by a Canadian business. They do not need to show in their applications that the Canadian company is doing business.

Upcomming 2025 Measures

Open Spousal