Open Spousal Work Permits After September 27, 2021

Meurrens LawWork Permits

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

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”) has designated several categories of work for genuine spouses or common-law partners of principal foreign nationals.

Dependent children are not eligible for open spousal work permits.

Principal Foreign Nationals

On September 27, 2021 IRCC introduced a change which clarifies what a “principal foreign national” is.

The principal foreign national is the first foreign national of the couple who obtained a study or work permit or was deemed authorized to work under the provisions of section regulation 186 of the Immigration and Refugee Protection Regulations other than under paragraph R186(w).

The principal foreign national can no longer obtain a spousal open work permit under the C41 or C42 category (described in more detail below) based on the dependent spouse’s spousal open work permit.

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.

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.

The principal foreign worker may be employed part-time for the spouse or common-law partner to qualify for this exemption. Officers have to be satisfied the principal foreign national’s employment or funds will be sufficient to financially support themselves and their family members while they are in Canada.

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 who hold a study permit and study on a full-time basis in post-graduation work permit- eligible study programs and institutions may apply for an open work permit under the LMIA exemption category C42, as work designated by the Minister.

This LMIA exemption category is intended for spouses who are not, themselves, already study permit holders actively engaged in full- time studies.

The IRCC website states:

With the application for a spousal open work permit, the dependent spouse or common-law partner should be providing the following:

    • evidence that they are the genuine spouse or common-law partner of a study permit holder
    • evidence that the principal foreign national is attending a designated learning institution
    • evidence that the principal foreign national is actively engaged in full-time studies in a post-graduation work permit- eligible study program and institution, such as
      • a Canadian public post-secondary institution, such as a
        • college
        • trade or technical school
        • university
        • CEGEP in Quebec
      • a private post-secondary institution in Quebec that operates under the same rules and regulations as a public post-secondary institution in Quebec
      • a private or public secondary or post-secondary institution 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)
      • a Canadian private institution authorized by provincial statute to confer degrees (for example, a bachelor’s degree, master’s degree, or doctorate), but only if the study permit holder is enrolled in a study program leading to a degree as authorized by the province, which may not include all study programs offered by the private institution.

If the principal foreign national is enrolled in a private post-secondary program/institution other than 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.