Last updated on October 25th, 2019
There are many ways that people who come to Canada legally can suddenly find themselves inside Canada without valid status. Some may simply forget to submit applications to extend their status prior to the end of the period of their authorized stay. Others may submit their extension applications on time only to have Immigration, Refugees and Citizenship Canada (“IRCC”) later refuse or reject their applications for being incomplete, leaving them without status in Canada.
While Canadian immigration law provides such foreign nationals with some options to regain valid temporary resident status in Canada, it is important that people understand the risks associated with each.
Leaving Canada and Re-Entering
The first, and arguably the riskiest, way that a foreign national can regain legal status in Canada is to exit Canada and re-enter. Anyone who does this will need to satisfy the Canada Border Services Agency (“CBSA”) that they will leave Canada by the end of their authorized stay, which can sometimes be tricky if the person has previous overstayed. As well, if the foreign national wants to work or study, then they will need to demonstrate to CBSA that they are eligible to do so.
Restoration of Status
For many, exiting Canada and re-entering is simply too risky or too expensive if they do not have a US visa. Luckily, Canada’s Immigration and Refugee Protection Regulations provide that if a visitor, worker, or student loses their status in Canada, then they can apply to restore their status if they do so within 90 days of their status expiring.
Restoration applications must be submitted either online or by mail to IRCC. Restoration applications cannot be submitted while entering Canada at a Canadian port of entry.Read more ›
Last updated on April 8th, 2020
If a visitor, worker, or student loses their status in Canada they may apply to restore their status. Such applications are referred to as “restoration applications.” Section 182 of the Immigration and Refugee Protection Regulations provides that:
182. On application made by a visitor, worker or student within 90 days after losing temporary resident status as a result of failing to comply with a condition imposed under paragraph 185(a), any of subparagraphs 185(b)(i) to (iii) or paragraph 185(c), an officer shall restore that status if, following an examination, it is established that the visitor, worker or student meets the initial requirements for their stay, has not failed to comply with any other conditions imposed and is not the subject of a declaration made under subsection 22.1(1) of the Act.
Immigration, Refugees and Citizenship Canada Guidelines (the “Guidelines“) provide that if an applicant applies to extend their temporary resident status after their temporary resident status expires, but within the 90-day restoration period, then the Case Processing Centre – Edmonton will inform them that they must also apply for restoration of status. The applicant will be given 90 days from the date of notification to submit their restoration application. This is an important point to note, as many people mistakenly assume that the 90-day restoration period only starts when a person’s work permit, visitor record, or study permit expires. Rather, it is when their temporary resident status expires, which includes implied status. Pursuant to the Federal Court of Canada decision in Shekhtman v. Canada (Citizenship and Immigration), IRCC must show that it must actually sent the decision.
The Guidelines also provides that restoration cannot be granted at Canadian ports of entry.Read more ›