The Post-Graduation Work Permit

Meurrens LawWork Permits

Canada’s Post-Graduate Work Permit (“PGWP”) program (the “PGWPP“) allows international students who have completed certain Canadian post-secondary programs to obtain work permits after graduating.  The work permits are open, meaning that the graduates can work for any employer in any Canadian province.  It is a fantastic program that enhances the competitiveness of Canadian post-secondary institutions internationally, and is normally an essential transitory step for international graduates looking to eventually obtain Canadian permanent residency.

However, every year there are many international students who mistakenly think that they will be eligible to participate in the program after graduating only to discover midway through their studies that they cannot.  It is accordingly very important that all international students in Canada understand how the PGWP program works.

Basis in Law

Section 205 of Canada’s Immigration and Refugee Protection Regulations provides the government with the authority to create programs to issue work permits to foreign nationals when it is satisfied that public policy objectives relating to the competiveness of Canada’s economy or academic institutions are met.  The PGWPP is one of these programs, and detailed information about it can be found on the Immigration, Refugees and Citizenship Canada (“IRCC“) website here.

As the Federal Court has noted in numerous decisions (such as Osahar v. Canada (Citizenship and Immigration), 2017 FC 666), immigration officers can determine that these requirements are binding.

Eligibility

Outside of Quebec, in order for an international graduate to obtain a PGWP after graduating, an international student must:

  • have completed an academic, vocational or professional training program at an eligible institution in Canada that is at least 8 months in duration leading to a degree, diploma or certificate;
  • have maintained full-time student status in Canada during each academic session of the program or programs of study they have completed and submitted as part of their post-graduation work permit application (with certain exceptions); and
  • have received a transcript and an official letter from the eligible Designated Learning Institution confirming that they have met the requirements to complete their program of study.

Within 180 days of the date of applying for the PGWP, applicants must also meet one of the following criteria:

  • They hold a valid study permit;
  • They held a study permit;
  • They were authorized to study in Canada without the requirement to obtain a study permit under certain provisions of the Immigration and Refugee Protection Regulations.

Duration

A PGWP’s duration will be equal to the length of the educational program that the international graduate completed, up to a maximum of three years.  Any completed program that is longer than two-years will result in a three-year work permit.  In other words, a two-year diploma and a four-year degree will both result in a three-year work permit.

It is important to note that it is the length of the program of study that is important, and not the actual time that it takes an international student to complete their program. For example, if a student enrolls in a program of study that is normally eight months in duration, but completes it in six months, then the student will be able to obtain an eight-month work permit after graduating. Conversely, an international student who takes two years to complete a one-year program will only receive a one-year PGWP.

Documentation

As noted above, one of the requirements is that applicants have to apply within six months of receiving written confirmation from their educational institution that they met the requirements for graduation. As such, and as noted by the Federal Court in Kaur v. Canada (Citizenship and Immigration), 2020 FC 513, it can be helpful to include documentation or attestations as to when someone graduated.

Transfers

There are complicated rules and scenarios for students transferring from one program to another, or completing multiple programs, that are beyond the scope of this article.  However, a particularly common one is that students who obtain a one-year degree or diploma from an eligible institution in Canada after having obtained, with the prior two-years, another diploma or degree from an eligible institution in Canada, may be issued a work permit for up to three years.  For example, if a student obtained a one-year diploma from the University of British Columbia in 2013, and then in 2015 obtained a MBA from the University of Toronto, then he would be able to obtain a three-year PGWP.

Students who complete a program of study granted by a non-Canadian institution located in Canada are ineligible to obtain work permits under the PGWP program.  However, students completing a program of study that has, as part of the program, an overseas component, such as an exchange, will be eligible as long as they earn a Canadian educational credential.

Application Process

The work permit application package and guide can be found on the Immigration, Refugees and Citizenship Canada’s website here. The checklist can be downloaded here.

Graduates may submit their applications online, or, in certain cases at a Canadian port of entry or at overseas visa offices.  Students who have completed their program of study and who apply for their PGWPs are permitted to work in Canada while IRCC processes their applications, provided that they were full-time students enrolled in eligible programs while they were studying, and that they did not exceed their authorized off-campus work periods while they were students.

Spouses

Unlike with international students, the spouses or common-law partners of PGWP holders are not automatically entitled to open work permits.

The spouse or common-law partner of a PGWP holder can obtain a work permit only if the PGWP holder is working in a skilled occupation as defined in National Occupational Classification 0, A or B of the National Occupational Classification website. To demonstrate this, the spouse or common-law partner should show the following.

  • a letter from their current employer confirming employment or a copy of their employment offer or contract; and
  • a copy of 3 of their pay stubs.

Full-time Studies

The IRCC website states that an applicant an applicant must have maintained “full-time student status in Canada during each academic session of the program or programs of study they have completed and submitted as part of their post-graduation work permit application.” The two exceptions to this are that a person can take leave from studies and that they can be part-time during their final academic session.

The jurisprudence regarding how officers are to assess whether a student had full-time student status in Canada during each academic session is both strict and provides much discretion to institutions.  To be eligible for the PGWPP, students who are taking leave must still be enrolled at the Designated Learning Institution, remain enrolled, and be actively pursuing their course or program of study.

In Brown v Canada (Citizenship and Immigration), 2018 FC 452, Justice Brown noted:

The eligibility criteria established by the PGWP Policy are mandatory and must be satisfied in order for a candidate to qualify for a PGWP. Nothing in the policy confers any discretion on immigration officers to modify or waive the eligibility requirements (Nookala at para 12).

In Munyani v. Canada (Citizenship and Immigration), 2021 FC 802, Justice Manson further held that:

While the jurisprudence is of the effect that nothing in the PGWP-PDI confers any discretion on immigration officers to modify or waive the eligibility requirements, it does state that “Officers should exercise their best judgment and take into account all relevant factors when assessing a student’s compliance with their study permit conditions.

In Idowu v. Canada (Citizenship and Immigration), 2022 FC 46, Madam Justice Pallota determined that it was reasonable for a visa officer to determine that a person who took a leave of absence due to financial hardship.  In Tcerkovnaia v. Canada (Immigration, Refugees and Citizenship), 2022 FC 861, Madam Justice Go wrote:

The Respondent also cites Idowu at para 7, stating that a PGWP applicant must, among other things, have ““maintained full time status in Canada during each academic session of the program.”” Idowu can be distinguished on facts. In that case, Ms. Idowu did not dispute she was a part time student in one semester due to financial hardship, nor that she had failed to enroll in any classes for three semesters. In dismissing the judicial review application, Justice Pallotta noted Ms. Idowu’s PGWP application ““did not explain why her parents were unable to provide financial assistance, or provide evidence to establish that she or her parents lacked the financial means to pay for full time studies for those semesters””: Idowu at para 14. As well, the letter from the university merely certified that Ms. Idowu completed the requirements for a Bachelor of Commerce degree: Idowu at para 15.

Here, the Applicant has provided reasons why she had to drop two courses during the 2017 Winter semester, and evidence that those reasons had been accepted by Ryerson University in considering her to be enrolled as a full time student. By failing to acknowledge the university’s letter, I am unable to conclude that the Officer in this case has exercised their best judgment and taken into account all relevant factors when assessing the Applicant’s eligibility for a PGWP, as required by the Manual: Munyanyi at para 25.

Further, while the Respondent argues that mere enrollment in full time studies is not material, and the Applicant must have continuously studied full time in Canada, the Decision made no such distinction. The Respondent’s argument cannot bolster the reasons after the fact.

Instead, the Decision referenced Ryerson University’s definition of full-time students as those who are enrolled in four courses in the semester. If the Officer saw fit to rely on one definition of the university regarding full time students based on the number of courses ““enrolled”” in the semester, then it was illogical for the Officer not to accept the university’s March 11, 2021 letter as proof that the Applicant was ““enrolled”” as a full time student.

Finally, I do not find any language in the Manual drawing any distinction between ““full time enrollment”” and ““full time studies.””

Those preparing PGWP applications who are uncertain as to whether they meet the full-time student requirement should read both Idowu and Tcerkovnaia as the result of the two cases are extremely specific steps and information that applicants should provide.

Finally, in Drake v. Canada (Citizenship and Immigration), 2021 FC 1083, Madam Justice Go determined that a student who studied part-time during an authorized period of leave could remain eligible for a PGWP.

Humanitarian & Compassionate Considerations

As the Federal Court affirmed in Dunkley v. Canada (Citizenship and Immigration), 2022 FC 892, visa officers have no discretion to modify the eligibility requirements of a PGWP on H&C grounds.

Ongoing Complications

There are two further restrictions, or potential restrictions, to obtaining PGWPs that are currently the subject of litigation that potential international students and graduates should understand.

The first is that students participating in distancing learning programs, either abroad or in Canada, are ineligible to obtain PGWPs.  In 2015, this restriction generated considerable media attention, as IRCC refused the PGWP applications of an entire graduating class at a private post-secondary institution after IRCC determined that the institution’s program constituted online learning.  Some of these graduates have sought intervention from the Federal Court of Canada, and one of the questions before the court is whether there is a percentage of online courses threshold that must be met before IRCC can declare a program ineligible.  Until either IRCC or the Federal Court provides clarification on this matter, international students who wish to participate in the PGWP program should understand the possible negative consequences of enrolling in any online courses.

After much uncertainty over how this distance-learning policy was to be interpreted, pursuant to the IRCC website officers are recommended to use the following guidelines in their assessment of an applicant’s PGWP eligibility when they have taken distance or online learning in Canada:

  • when less than the majority of all the credits earned by the student toward the completion of a program of study were earned by completing online courses, a post-graduation work permit may be issued based on the length of the program as confirmed by the school, including credits earned from both in-class and online courses; and
  • when the majority of the credits earned by the student toward the completion of a program of study were earned by completing online courses, the applicant is ineligible for the PGWP, as the program may reasonably be considered a distance-learning program.

There are certain exceptions to the above due to the COVID-19 pandemic that are beyond the scope of this post.

Second, recent graduates applying for PGWPs must ensure that they complete their PGWP applications promptly and properly.  With most work permits applications, if IRCC either refuses or bounces an application for incompleteness, then an applicant can typically apply for restoration of status within 90 days.  It is not clear, however, whether restoration is possible in the case of the PGWP because of the IRCC’s requirement that a recent graduate’s study permit be valid when they apply for their PGWP, although several Federal Court decisions seem to imply that it really is up to the officer.  On April 8, 2020, the IRCC website stated the following:

Applicants whose study permit becomes invalid or expires must either

leave Canada and apply for a post-graduation work permit from overseas, or
apply to restore their status as a student by applying for a PGWP with the correct fees ($255) and paying the fees to restore their status as a student ($350)

Working While Waiting

Eligible international graduates are authorized to work full-time after their studies are completed until a decision is made on their application for a PGWP.  They will not be required to apply for a work permit to do this. This is provided for by s. 186(w) of the Immigration and Refugee Protection Regulations, which states:

186 A foreign national may work in Canada without a work permit

(w) if they are or were the holder of a study permit who has completed their program of study and

(i) they met the requirements set out in paragraph (v), and

(ii) they applied for a work permit before the expiry of that study permit and a decision has not yet been made in respect of their application; or

According to IRCC’s Immigration Representatives unit, this section is not limited to PGWP applications.

Statistics

The PGWP has a surprisingly high refusal rate. During the first six months of 2016, the PGWP refusal rate exceeded 20% in every month except May, and in both June and March was 40% or more.

Although a breakdown of the reasons for refusal of PGWP applications has not been published, it is likely because international graduates either:

  • attended a private school whose graduates are not eligible to receive PGWPs (which, contrary to the opinion of some private institutions) is mot of them;
  • their application was returned for being incomplete and when they tried to apply again their study permit had expired; or
  • a visa officer determined that they did not meet the full-time studies requirement.

In order to avoid such rejections, it is important that students:

  • research their prospective educational institution so that they know whether it qualifies;
  • ensure that their PGWP application is complete and that it includes the correct fee amount; and
  • if there is any question about whether their studies were full-time, to make sure that it is explained in their application.

As with all applications, the onus is on the applicant to make sure that they have shown that they meet the requirements of the PGWP.  If something is unclear, the visa officer is not under any obligation to seek clarification, but can refuse the application. For this reason, it is imperative that international graduates ensure that their application is complete and satisfactory.