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| | {{REVIEWED LSLAP | date= July 18, 2023}} |
| {{LSLAP Manual TOC|expanded = immigration}} | | {{LSLAP Manual TOC|expanded = immigration}} |
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| == A. Residency Requirement == | | == A. Residency Requirement == |
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| A permanent resident must meet the residency requirements as outlined in the IRPA. '''Generally, a permanent resident must be physically present in Canada for 730 days out of every five years.''' If a person has been a permanent resident for less than five years, they must demonstrate at examination, that they will be able to meet the residency obligation in respect of the five-year period immediately after they became a permanent resident. The residency requirements can be met in a few different ways. See s. 28 of the IRPA for full details. | | A permanent resident must meet the residency requirements as outlined in the IRPA. '''Generally, a permanent resident must be physically present in Canada for 730 days out of every five years.''' If a person has been a permanent resident for less than five years, they must demonstrate at examination, that they will be able to meet the residency obligation in respect of the five-year period immediately after they became a permanent resident. The residency requirements can be met in a few different ways. See s. 28 of the ''IRPA'' for full details. |
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| '''NOTE:''' The onus is on the permanent resident to demonstrate with supporting documentation as considered necessary by an officer that they were physically present in Canada for the required number of days or have otherwise met (or will be able to meet) the residency obligation as prescribed in IRPA. The permanent resident also bears the onus of presenting documentation that is credible, in the opinion of an officer, to support any assertion(s) made by the permanent resident, or that may have been made on behalf of that permanent resident. | | :'''NOTE:''' The onus is on the permanent resident to demonstrate with supporting documentation as considered necessary by an officer that they were physically present in Canada for the required number of days or have otherwise met (or will be able to meet) the residency obligation as prescribed in ''IRPA''. The permanent resident also bears the onus of presenting documentation that is credible, in the opinion of an officer, to support any assertion(s) made by the permanent resident, or that may have been made on behalf of that permanent resident. |
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| == B. Inadmissibility == | | == B. Inadmissibility == |
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| A foreign national or permanent resident can be determined “inadmissible” to Canada for several reasons, including, but not limited to, committing a serious crime or being found to have misrepresented information in their immigration application. Inadmissibility means that a foreign national or permanent resident has contravened the IRPA in some way, and will be issued a removal order. | | A foreign national or permanent resident can be determined “inadmissible” to Canada for several reasons, including, but not limited to: |
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| There are three types of removal orders, which are discussed below.
| | *Committing a serious crime; |
| | *Being found to have misrepresented information in their immigration application; |
| | *Medical reasons that endanger public health and safety; |
| | *If you are unable or unwilling to support yourself and your family members. |
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| If a permanent resident is determined inadmissible, he or she may lose their permanent resident status. The inadmissibility provisions relating to foreign nationals and permanent residents overlap for the most part, but there are some differences. For example, permanent residents will be inadmissible for serious criminality if they commit an indictable offence, while foreign nationals will be inadmissible for committing a less serious summary offence. Refer to the IRPA directly for specific grounds of inadmissibility (ss 34 – 43).
| | Inadmissibility means that a foreign national or permanent resident has contravened the IRPA in some way and may be issued a removal order. |
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| '''NOTE:''' Convention refugees are not inadmissible on the same health and criminality grounds as most other kinds of applicants, but they may be excluded in cases of serious criminality or crimes against humanity.
| | There are three types of removal orders, which are discussed below. |
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| '''NOTE:''' '''A permanent resident sentenced to 6 months or more of incarceration''' (including time in custody awaiting trial) is inadmissible to Canada and '''does not have an appeal to the IAD''' of their removal. This means that permanent residents who are arrested and charged with crimes, even relatively minor ones, must ensure their criminal counsel are aware of this consequence from the beginning of criminal process. A conditional sentence does not equal imprisonment for the purposes of this provision and sentencing must be considered at the time of conviction (see [https://www.canlii.org/en/ca/scc/doc/2017/2017scc50/2017scc50.html?autocompleteStr=Tran%20v%20Canada%20(Public%20Safety%20and%20Emergency%20Preparedness)%2C%202017%20SCC%2050&autocompletePos=1 Tran v Canada (Public Safety and Emergency Preparedness), 2017 SCC 50]). Users of this manual should check for developments in this area of the law as it is undergoing continued legal development. See also [[Immigration Issues at Sentencing (18:XI) | XIII Immigration Issues at Sentencing]].
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| == IX. IN-CANADA TEMPORARY RESIDENCE MATTERS ==
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| For temporary residents in Canada, such as visitors, workers or students, who apply for permanent residency while holding temporary resident statuses in Canada, they may counter various immigration matters, which will be covered in this section.
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| == A. Temporary Residence Extension ==
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| In general, a temporary resident who enters Canada as a visitor can usually stay in Canada for up to six months, unless the CBSA officer authorized a different length of stay in Canada. A temporary resident in Canada may apply to extend their stay beyond their initial period of stay granted by the CBSA officer at the POE. The temporary resident extension application must be submitted before the expiry date of temporary resident’s authorized stay in Canada.
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| For the temporary resident extension application, the applicant submits the application to the Case Processing Centre in Edmonton (“CPC-E”) usually online with all of the required documentation and the fee. An agent at CPC-E will review the application. If the application is approved, then CPC-E will request for passport if the applicant is from a temporary resident visa required country. Conversely, if the applicant is from a temporary resident visa exempt country, then a Visitor Record will be mailed to the applicant. However, if the application is not approved, then CPC-E will mail a letter to the applicant to inform the applicant of the reasons for refusal and advice of the next course of action.
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| Please refer to the [https://www.canada.ca/en/immigration-refugees-citizenship/services/visit-canada/extend-stay.html IRCC website] for information on the process to extend the temporary resident status in Canada.
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| When the temporary resident submits an extension application before their authorized period of stay expires, then the temporary resident could legally remain in Canada on implied status until a decision on the temporary resident extension application is made or by the end of the new period authorized for their stay when their application is approved, pursuant to IRP Regulations 183(5). Similarly, a foreign national on a valid temporary work permit or study permit who has applied to extend their status in Canada before their Work Permit or Study Permit is expired could also continue to work in Canada or study in Canada on implied status under the same terms and conditions as their temporary status document in Canada until a decision on their application is made.
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| Please note if a temporary resident with implied status leaves Canada before a decision on their extension application is made, then when they re-enter Canada they cannot study or work until a decision is made on their Study Permit or Work Permit extension application.
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| Those who are on implied status and wish to leave Canada while their extension application is processing should contact a lawyer for assistance regarding eligibility to re-enter Canada.
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| == B. Loss and Restoration of Temporary of Temporary Resident Status ==
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| Section 47 of the IRPA outlines when a foreign national’s temporary resident status in Canada is expired; namely:
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| (i) At the end of the period for which they are authorized to remain in Canada;
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| (ii) On a determination by an officer or the Immigration Division that they have failed to comply wth any other requirements of IRPA; or
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| (iii) On cancellation of their temporary resident permit.
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| Further, if a temporary resient has lost their status based on IRPA s. 47 or let their authorization to work or study expire, they may apply to restore that status in accordance with IRP Regulations s. 182. The eligibility requirements for restoration of status are as follow; namely, the applicant must:
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| *applies within 90 days of having lost their status;
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| *meets the initial requirements for their stay;
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| *remains in Canada until a decision is made;
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| *has not failed to comply with any condition imposed automatically by regulation or an officer other than those listed under R 185(a), R 185(b)(i) to (iii), and R 185(c); and
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| *continues to meet the requirements of the authorization they want to restore.
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| The application process is similar to the one of temporary residence extension. If the applicant is not eligible for the restoration, the officer will refuse the application, and the applicant is notified in writing that they must leave Canada immediately. Also, the officer will determine whether a s. 44 report may be warranted due to a possible violation of the IRPA or IRPR. The officer may refer the application to a Domestic Network (“DN”) officer near the applicant’s place of residence for further assessment and interview. If the application is referred to a DN office, the DN officer may call the applicant in for an interview to gather additional information. The officer will either approve or refuse the application. If the application is refused, a letter will go to the applicant notifying them of the refusal, the reasons for it. Refused applicants should leave Canada immediately.
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| For detailed information about the eligibility and restoration fees, please check the [https://www.canada.ca/en/immigration-refugees-citizenship/corporate/publications-manuals/operational-bulletins-manuals/temporary-residents/visitors/restoration-status.html IRCC website].
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| == C. In-Canada Study Permit Applications ==
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| In general, the initial Study Permit application is submitted while the foreign national is outside of Canada (see IRP Regulations s. 213). However, foreign national may apply for a study permit when entering Canada at the POE if they are a citizen or permanent resident of the United States, a resident of Greenland or a resident of St. Pierre and Miquelon (see IRP Regulations s. 214). Further, a foreign national may apply for a study permit after entering Canada if they meet the requirements specified in IRP Regulations s. 215. For more information, please see the [https://www.canada.ca/en/immigration-refugees-citizenship/corporate/publications-manuals/operational-bulletins-manuals/temporary-residents/study-permits/making-application.html#InCanada IRCC website].
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| '''NOTE:''' If a foreign national has already had a study permit approved abroad but has not obtained it at a POE on their initial arrival due to different reasons, they may contact the IRCC Call Centre and the Operational Support Centre will assess the foreign national’s eligibility against the case management system to verify their status. Once the eligibility is confirmed, CPC-E may mail a study permit to the foreign national’s address in Canada.
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| '''NOTE:''' An application for a study permit renewal does not constitute an application for a TRV. Therefore, visa-required foreign nationals must apply separately for a TRV extension and pay the processing fee.
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| '''NOTE:''' In-Canada visitors are not eligible to apply for a study permit from within Canada unless they are exempt under R215.
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| == D. Working in Canada as an International Student ==
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| === 1. Working On-Campus During Studies ===
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| In general, students can work on-campus after they have started their study program in Canada. This means if the students arrived in Canada prior to the program commences they must wait until they have commenced their studies in Canada before they can work on-campus. In order to work on the student’s campus without a work permit, the following conditions must be met:
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| a) The student is a full-time post-secondary student at a public post-secondary school, private college-level school in Quebec that operates under the same rules as public schools, and is at least 50% funded by government grants, or Canadian private school that can legally award degrees under provincial law;
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| b) The student has a valid study permit; and
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| c) The student has a Social Insurance Number (“SIN”) - this can be obtained at a Service Canada office.
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| Please note the student must stop working on-campus under one of the below circumstances. If the student continues to work, then this could lead to a removal order for not complying with the terms of the Study Permit.
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| a) On the day the student stop studying full-time;
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| b) When the student’s study permit expires;
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| c) When the student is on an authorized leave from studies; or
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| d) When the student is switching schools and are not currently studying.
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| IRCC also defines where the student can work on-campus and who they can work for. For more information see the [https://www.canada.ca/en/immigration-refugees-citizenship/services/study-canada/work/work-on-campus.html IRCC website].
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| ===2. Working Off-Campus During Studies===
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| In general, students can work off-campus after they have started their study program in Canada. This means if the students arrived in Canada prior to the program commences they must wait until they have commenced their studies in Canada before they can work off-campus. In order for the students to work off campus, the following conditions must be met:
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| a) The student is a full-time student at a designated learning institution;
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| b) The student is enrolled in a post-secondary academic, vocational or professional training program, or a secondary-level vocational training program (Quebec only);
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| c) The student’s study program is at least 6 months long and leads to a degree, diploma or certificate;
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| d) The student’s Student Permit has a notation that says the student can work off campus;
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| e) The student has started studying in Canada; and
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| f) The student has a Social Insurance Number (“SIN”) - this can be obtained at a Service Canada office.
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| If the students are eligible to work in Canada off-campus, then they are bound by the below conditions:
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| 1. The student may work up to 20 hours per week off-campus or full-time during regular breaks if they meet the criteria outlined in IRP Regulations s. 186(v); and
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| 2. The student may accept employment on or off campus if they meet the eligibility criteria in IRP Regulations s. 186(f), (v) or (w) and they must cease working if they no longer meet the above criteria.
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| After the student completed their study they generally need to stop working. In this scenario, we recommend you to speak to a lawyer. For more information, please refer to the [https://www.canada.ca/en/immigration-refugees-citizenship/services/study-canada/work/work-off-campus.html#who-can IRCC website].
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| '''NOTE:''' During the COVID-19 pandemic, international students providing essential service
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| is temporarily allowed to work more than 20 hours if they are a study permit holder
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| in an academic session; eligible to work off campus; and providing an essential
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| service as defined by [https://www.publicsafety.gc.ca/cnt/ntnl-scrt/crtcl-nfrstrctr/esf-sfe-en.aspx Public Safety Canada]. This temporary policy is in effect until August 31, 2020. For more information, please visit the [https://www.canada.ca/en/immigration-refugees-citizenship/services/coronavirus-covid19/visitors-foreign-workers-students.html IRCC website].
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| '''NOTE: Students who are taking ESL/FSL language courses for self-improvement, or a course or program as a prerequisite to their enrolment at a DLI are not eligible for the off campus work permit program for their enrolment in those courses or programs, but it does not affect their eligibility gained by other programs.'''
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| === 3. Working during PGWP Application ===
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| A post-graduation work permit (“PGWP”) allows students who have graduated from a participating Canadian post-secondary institution to gain valuable Canadian work experience. Students often use this to gain the necessary Canadian work experience in order to immigrate to Canada as a permanent resident under the Canadian Experience Class.
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| In general, international students who have completed their program of study are allowed to work pursuant to IRP Regulations 186(w), while they are waiting for a decision on their PGWP application, provided they meet all of the below criteria:
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| * they are or were holders of a valid study permit at the time of the PGWP application;
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| * they were full-time students enrolled at a DLI in a post-secondary academic, vocational or professional training program;
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| * they were authorized to work off-campus without a work permit; and
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| * they did not exceed the allowable hours of work.
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| In general, a student is only permitted to apply for one PGWP in their lifetime. There are specific deadlines that students must meet in order to be eligible to apply for a PGWP. Applicants must apply for a PGWP within 180 days of obtaining written confirmation from their DLI indicating that they have met the requirements for completing their program of study, starting from the earlier time of the day their final marks are issued and the day they receive formal written notification of program completion. The onus is on the student to provide proof of the date of completion of the program to IRCC.
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| A PGWP is issued based on the length of the study program (including regularly scheduled breaks) and can last between 8 months and 3 years. When determining the length of a post-graduation work permit, officers may confirm the duration of the program of study in Canada with supporting documents, including letter confirming completion of the program and transcript. For details about length calculation and other frequent issues about its validity, please refer to the [https://www.canada.ca/en/immigration-refugees-citizenship/corporate/publications-manuals/operational-bulletins-manuals/temporary-residents/study-permits/post-graduation-work-permit-program/permit.html IRCC website].
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| The PGWP can be applied while the student is inside Canada or outside Canada.
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| The requirements that must be met for a student to apply for a PGWP while in Canada are as follow:
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| * their study permit is still valid,
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| * they have a valid visitor record because they changed their status to visitor before their study permit expired, while waiting for their notice of graduation from their institution or simply to remain in Canada, subject to R 186(w),
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| * they are on implied status (submitted an application to extend or change their status to visitor or student before the expiry date of their study permit and no decision has been made).
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| When the student’s Study Permit becomes invalid or expires the student must leave Canada and submit the PGWP application overseas, or apply to restore the student’s status as a student, then submit the PGWP concurrently.
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| Application packages can be found at the below websites:
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| *https://www.canada.ca/en/immigration-refugees-citizenship/services/study-canada/work/after-graduation/apply.html (in Canada), and
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| *https://www.canada.ca/en/immigration-refugees-citizenship/services/application/application-forms-guides/apply-work-permit-outside-canada.html (overseas).
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| '''NOTE:''' There are some common types of ineligible applicants, including those who have been previously issued a PGWP: https://www.canada.ca/en/immigration-refugees-citizenship/corporate/publications-manuals/operational-bulletins-manuals/temporary-residents/study-permits/post-graduation-work-permit-program/eligibility.html.
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| '''NOTE:''' PGWP holders may leave Canada and return if they satisfy certain requirements: https://www.canada.ca/en/immigration-refugees-citizenship/corporate/publications-manuals/operational-bulletins-manuals/temporary-residents/study-permits/post-graduation-work-permit-program/travel.html.
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| == E. Working in Canada as Foreign Spouses or Partners of Temporary Residents ==
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| === 1. Spouses or Partners of Skilled Workers ===
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| Spouses or common-law partners of skilled foreign workers may be authorized to work in Canada without an Offer of Employment (see IRP Regulations s. 205(c)(ii)). A spouse or common law partner is eligible to apply for an open work permit if their spouse (the principal foreign worker) meets the below requirements:
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| *holds a work permit valid for at least 6 months, or, if working under IRP Regulations s. 186 without a work permit, presents evidence that they will be working for a minimum of 6 months;
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| *is employed in an occupation that falls within skill type 0 or skill levels A or B: (See the [https://www.canada.ca/en/immigration-refugees-citizenship/services/immigrate-canada/express-entry/eligibility/find-national-occupation-code.html IRCC website] to determine the NOC), and
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| *physically resides or plans to physically reside in Canada while working.
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| For detailed information on the eligibility requirements and application procedures, please visit the [https://www.canada.ca/en/immigration-refugees-citizenship/corporate/publications-manuals/operational-bulletins-manuals/temporary-residents/foreign-workers/exemption-codes/public-policy-competitiveness-economy.html IRCC website].
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| === 2. Spouses or Partners of Full-Time Students ===
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| In general, spouses or common-law partners of certain foreign students may be allowed to apply for an Open Work Permit (see IRP Regulations s. 205(c)(ii) and LMIA exemption code C42). The applicant must provide evidence that they are the spouse or common law partner of a study permit hold who is a full-time student at a public secondary institution; a private post-secondary institution 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 or an attestation of vocational specialization; or a Canadian private institution authorized by provincial statute to confer degree but only if the student is enrolled in one of the programs of study leading to a degree, as authorized by the province and not in just any program of study offered by the private institution.
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| For more information, please see the [https://www.canada.ca/en/immigration-refugees-citizenship/corporate/publications-manuals/operational-bulletins-manuals/temporary-residents/foreign-workers/exemption-codes/public-policy-competitiveness-economy.html IRCC website].
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| '''NOTE:''' The validity of the Work Permit will coincide with the spouse’s Study Permit.
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| == F. Revocation of Work Permit due to Public Policy Considerations ==
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| In specific circumstances, an officer may revoke a Work Permit if, in the officer’s opinion, public policy considerations specified in instructions by the Minister of Immigration, Refugees and Citizenship justify the revocation, including (not an exclusive list):
| | If a permanent resident is deemed inadmissible, they may lose their permanent resident status. The inadmissibility provisions relating to foreign nationals and permanent residents overlap for the most part, but there are some differences. For example, permanent residents will be inadmissible for serious criminality if they commit an indictable offence, while foreign nationals will be inadmissible for committing a less serious summary offence. Refer to the IRPA directly for specific grounds of inadmissibility (ss 34 – 43). |
| *the associated LMIA has been revoked;
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| *the employment is having a significantly greater negative effect than benefit with respect to the development of a strong Canadian economy (applies to LMIA-exempt work permit);
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| *the employer has provided false, misleading or inaccurate information;
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| *the employer’s name has been added to the ineligible employer list under IRP Regulations s. 209.91(3); or
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| *the Work Permit is issued on the basis of any foreign national on the basis of their relationship with another foreign national and the principal foreign worker’s Work Permit is now revoked (applies to LMIA-exempt Work Permit).
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| For details, please refer to the [https://www.canada.ca/en/immigration-refugees-citizenship/corporate/publications-manuals/operational-bulletins-manuals/temporary-residents/foreign-workers/work-without-permit/revocation-work-permit-public-policy-considerations.html IRCC website].
| | :'''NOTE:''' Convention refugees are not inadmissible on the same health and criminality grounds as most other kinds of applicants, but they may be excluded from refugee protection in cases of serious criminality or crimes against humanity. |
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| '''NOTE:''' Revocation of a foreign national’s Work Permit does not make the foreign national inadmissible to Canada. | | :'''NOTE:''' '''A permanent resident sentenced to 6 months or more of incarceration''' (including time in custody awaiting trial) is inadmissible to Canada and '''does not have an appeal to the IAD''' of their removal. This means that permanent residents who are arrested and charged with crimes, even relatively minor ones, must ensure their criminal counsel are aware of this consequence from the beginning of the criminal process. A conditional sentence does not equal imprisonment for the purposes of this provision and sentencing must be considered at the time of conviction (see [https://www.canlii.org/en/ca/scc/doc/2017/2017scc50/2017scc50.html?autocompleteStr=Tran%20v%20Canada%20(Public%20Safety%20and%20Emergency%20Preparedness)%2C%202017%20SCC%2050&autocompletePos=1 Tran v Canada (Public Safety and Emergency Preparedness), 2017 SCC 50]). Users of this manual should check for developments in this area of the law as it is undergoing continued legal development. See also [[Immigration_Issues_at_Sentencing_(18:XIII)|XIII: Immigration Issues at Sentencing]]. |
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| '''NOTE:''' All in-Canada visitor record, study permit and work permit applications must be submitted electronically, subject to a limited number of exemptions: https://www.canada.ca/en/immigration-refugees-citizenship/corporate/publications-manuals/operational-bulletins-manuals/temporary-residents/visitors/place-application-visa-electronic-travel-authorization-study-permit-work-permit/exempt-electronic-applications.html.
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