Question & Answer – Unauthorized Study and CEC (IR-13)

Meurrens LawImmigration Trends

The following is an e-mail exchange between an immigration representative and Citizenship and Immigration Canada regarding expungements.  The Federal Skilled Worker Program allows certain individuals employed in Canada without a Labour Market Opinion to qualify for Arranged Employment.  As with any program, questions emerged regarding specific requirements, including whether intra-company transferees qualify for Arranged Employment without a Labour Market Opinion.

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 15, 2013

Dear CIC,

I would be grateful if you would kindly answer the following question about the Canadian Experience Category

My question relates toR. 87.1(3)(c) and in particular the wording near the end of this subsection which reads “and any period of full-time study or training”. That wording appears to be a “carry over” from the previous iteration of the CEC category, when there was a “graduates” stream and a “foreign worker” stream. Now that the concept of qualifying education in Canada is no longer part ofthe CEC category, the existence of this wording inR. 87.1(3)(c) is confusing.

Please consider the following hypothetical/chronology: if a foreign national accumulated sufficient work experience while in Canada with a work permit to qualify for CEC, then later, while still holding a work permit, engaged in unauthorized studies, then left Canada, would the foreign national be eligible for the CEC category, assuming all other requirements are met? Or would R 87 .I (3)( c) operate to disqualify the applicant?

In other words, might it be determined that the foreign national didn’t have temporary resident status during the period of study as per 87.1(3)(c), or, would it be correct to say that the foreign national had temp resident status during the period of study by virtue of holding the work permit, but that the studies were unauthorized, in which case R. 87.1(3)(c) would not apply?

I have looked through Manual OP25A however it does not address this scenario. It says (with my emphasis):

9.2. Temporary resident status
The applicant must have had temporary resident status during the period of work which qualifies them for CEC [R87.1(3)(c)].

Foreign nationals such as refugee claimants in Canada and unauthorized workers, whose work experience would be accumulated while they have no temporary resident status in Canada, are not eligible for the CEC.

Note: An applicant under the CEC does not need to hold a work permit. Applicants who are authorized to work in Canada under Rl86 are eligible to apply under the CEC, but must provide documentation with their application establishing that they had legal temporary status in Canada (e.g. a visitor record).

One interpretation of this is that because there is no mention of the words in question in R. 87.1(3)(c), i.e. “and any period of full-time study or training”, they are just a carry-over from the previous version of the CEC category and have lost their significance.

Could you please also kindly point me to the definition of “full-time study” for the purpose of the CEC category.

Answer – May 22, 2013

Thank you for your inquiry.

R87.1(3)(c) refers intentionally to the requirement for an applicant under the CEC to have had temporary resident status during their period of work experience and any period of full-time study or training. Although there is no longer an education requirement under the CEC, the wording of this paragraph reflects that both temporary foreign workers and international student graduates remain eligible for permanent residence under the program, provided they did not work or study in Canada without authorization and meet all other CEC requirements.

In the hypothetical example you’ve provided below, the applicant would be found ineligible under the CEC for failing to meet R87.1(3)(c). In such a scenario, the applicant would have invalidated their temporary resident status by failing to meet the general conditions imposed on all temporary residents, specifically to not work or study unless authorized pursuant to R183(1)(b) and (c) respectively.

With respect to your second question, full-time study is generally considered to be a study schedule with a minimum of 15 hours of instruction per week during the academic year. Full-time study status is determined by the educational institution and students should confirm what the full-time requirements are for their particular program of study and educational institution.

I do not understood the policy rationale behind why intracompany transferees under NAFTA, the Canada-Chile FTA, the Canada-Peru FTA, and other free-trade agreements are eligible for Arranged Employment without a Labour Market Opinion, while general intra-company transferees are not.  Attempting to have a general ICT enter Canada under GATS is also unhelpful, because the Foreign Worker Manual instructs officers to process them under R205(a), C12.  Can anyone explain this?