Tag Archives: PGWP

IRCC Makes Positive Changes to the Post-Graduate Work Permit Program – February 2019, But First A Little Personal History About Pushing Change

Part 1: First – A Little Personal History about Pushing Change

In advance, I want to make clear that I am not writing this first section to make it appear as if I had anything to do with the changes announced today. This was done by concerned students, stakeholders, schools, other lawyers, and great IRCC policy people engaged in this issue. I am writing this because I’ve been asked by a number of young mentee law students/pre-law students recently (and other fellow junior lawyers) how I got so engaged with international student issues. Rather than just simply copy and paste the website changes, I thought the process of my interest, advocacy, and how it all plays in – may be of interest to some readers.

Since IRCC implemented their clarified directive Study Permits: Assessing study permit conditions I had a feeling that new instructions on the PGWP would be coming. A month ago, Immigration Representatives confirmed to me by email that this was the case:

Actively pursuing studies

A month later, on Valentine’s Day no less, IRCC placed some little cards into the brown paper bags tied into the back of plastic chairs of international students (sorry – as you can tell I’m getting off topic and nostalgic, as I write) .

As frequent readers of this blog will know, I have been advocating for PGWP changes for several years now, having assisted many clients in various stages of challenges with this program – ranging from eligibility concerns, to initial applications at Inland Offices, VOs, and POEs, to the Federal Court, and reconsideration requests. I gave talks, wrote a lot of articles, had student clients who speoke to media, and advised schools – all because of the uncertainty. At one of my talks I think I described being an international student in Canada as being caught in a rough ocean with a life jacket on and a PR island that often appears too far to swim to.

The past few years began to see a lot of challenges in the area. Refusal rates began to climb and international students, especially from those with non-traditional study programs or for reasons outside of their control had to take leaves in order to complete their studies. While I was successful in restoring several international students who had been refused, either for having their study permits lapse or having paid less than the required fees, the case law during the time (notable FC cases from Raj Sharma and later Ravi Jain), started to close the door on that process.

There was also a huge health toll, one that was lost in the rhetoric of blame placed on international students in mainstream media. I talked a bit about it with journalist, Melanie Green here.

International students, many already dealing with separation anxiety, isolationism, and culture shock, not only pay often times 3 to 4 times the tuition than domestic students, but also face other barriers limiting their ability to work and seek access to crucial settlement services.

From a personal perspective, my own spouse was at the time going through the international student experience as were her colleagues (and I was footing the bill of course!) I saw these issues affect a lot of her friends, especially the financial challenges. Personal experience goes a long way into building a passion for practice.

Looking back, given  I was having a conversation about this with IRCC program managers such under three years ago about the need for change – it has indeed been a long time coming.  It has been incremental – but now there is a clear list of DLIs on the website, as discussed earlier, the aforementioned actively pursuing studies requirement was clarified, and now this.

I am very proud of IRCC for stepping up for international students. Without further ado, here are the changes.

Part 2: The Changes

IRCC’s changes can be found here and are titled “Program delivery update: Processing Instructions for the Post-Graduation Work Permit Program.”

There are two major changes from IRCC and one change that I would also add to the list, around the leave provision.

Change 1: Deadline to Apply Extended from 90 Days to Six Months

There is now a six month period, instead of a 90 day period in which to apply for a Post-Graduate Work Permit. This gives a lot of flexibility for students to further explore after graduation whether they want to continue studying or apply for a post-graduate work permit. It also removes a lot of the uncertainty which arose when a student was told they had completed their studies but did not formally graduate until several months later, creating confusion on the 90 day period starting point. Six months will make that much better.

One of the things I do see arising out of this is change is a lot of schools that were previously thwarted (or had negative fallout) from four-month add on programs now integrating it into their programs. The raison-d’etre is that these programs could assist into entry-to practice and help students secure employment without killing valuable time off their PGWPs. It may also encourage some students to continue studies rather than graduate and apply for PGWPs.

This could create problems though if a student applies at month 4 of 6, makes a mistakes, and becomes ineligible for restoration. Furthermore, I think IRCC and related stakeholders do have a role to play with respect to sussing out that interplay between R.222(1) (a) IRPR which could invalidate the student status of individuals who intend to apply for a PGWP at month 4 or 5 but not continue their studies. These students could lose status unknowingly.

The possible solution? Visitor Record Extensions may need to be employed to bridge between end of student status and prior to a PGWP application.

Change 2: No need to hold a valid study permit while applying for a PGWP

This is a big one – which unfortunately came off the backs of several deserving applicants who were refused. Previously, students whose study permits were going to expire before they were able to apply for PGWP had to extend their status, creating a weird scenario where they had graduated but still had to apply to maintain student status at the institution. This also affected a lot of students who decided to leave Canada right after they graduated and apply abroad, forgetting to extend their study permits.

This was also the main issue in my colleague Ravi Jain’s case of Nookala v. Canada (Citizenship and Immigration), 2016 FC 1019 which unfortunately for awhile closed the door.

Now the language is hold or held a study permit.

This also opens the door for restoration at least within the six month period. This goes again to the importance of applying earlier (rather than later) for a PGWP in most circumstances.

I would like a little more clarity around Restoration and think it should be a separate section on the program guidelines.

Change 3: Leave Exception – Discretion to Issue PGWP Where Not Continuous Full-Time Studies

IRCC has added to their instructions information about leave which specifically carve out an exception for those students who took a leave.

The Instruction state:

Leave from studies

If the applicant remained in Canada while a student and took leave from their studies during their program, the officer must determine if the applicant was compliant with the conditions of their study permit, as outlined in Assessing study permit conditions. Officers may request additional documents to complete their assessment. Per paragraph R220.1(1)(b), students must

  • be enrolled at a DLI
  • remain enrolled
  • be actively pursuing their course or program of study

If the officer determines that the student actively pursued studies during their leave, the student may still be eligible for the Post-Graduation Work Permit Program (PGWPP).

If it is determined that the student has not met the conditions of their study permit, they may be banned from applying for a post-graduation work permit for 6 months from the date they stopped their unauthorized study or work, per subparagraph R200(3)(e)(i).

This suggests that in addition to leeway – there could also be individuals banned from applying, depending on the time elapsed before graduation. However, as we know there is also a final semester rule that does provide some comfort to international students who are part-time in their final semester.

IRCC’s Guidelines on Leave provide more insight on how this may apply in practice:

D. Leave from studies

Students may be required or may wish to take leave from their studies while in Canada. For the purpose of assessing if a student is actively pursuing their studies, any leave taken from a program of studies in Canada should not exceed 150 days from the date the leave commenced and must be authorized by their DLI.

A student on leave who begins or resumes their studies within 150 days from the date the leave commenced (that is, the date the leave was granted by the institution) is considered to be actively pursuing studies during their leave. If a student does not resume their studies within 150 days, they should do either of the following:

If they do not change their status or leave Canada, they are considered non-compliant with their study permit conditions.

In cases where a student has taken multiple periods of leave in Canada during their program of study, the officer should consider the student’s reasons for the various periods of leave. If the multiple periods of leave do not appear to support the expectation that the student is making reasonable progress toward the completion of their course or program of study in the time allotted by the course or program of study, the officer may determine that the study permit holder has not fulfilled the condition to actively pursue their course or program of study.

Examples of reasons for leave include but are not limited to the following:

  • medical illness or injury
  • pregnancy
  • family emergency
  • death or serious illness of a family member
  • change in program of study within the same institution, outside a regularly scheduled break
  • dismissals or suspensions (dependent on degree of severity)
  • postponed program start date (see Deferred enrollment for more information)

E. Deferred enrollment

In exceptional circumstances, a student may be required to defer their program’s start date to the next semester. If the student defers their program start date, it should be formally approved by the DLI. In some cases, the deferral is imposed by the DLI.

If the study permit holder is in Canada at the time of deferral, and they wish to remain in Canada, they must begin their studies the following semester or within 150 days from the date the deferred enrollment is confirmed, whichever comes first. Otherwise, they should do either of the following:

Note: In all deferral cases, students should obtain an updated letter of acceptance from the DLI.

https://www.canada.ca/en/immigration-refugees-citizenship/corporate/publications-manuals/operational-bulletins-manuals/temporary-residents/study-permits/assessing-conditions.html#leave

I still think there are some gaps such as deferred registration (see below) but ultimately it does give Officer’s a level of discretion. My hope is they will continue to rely on the support/guidance of DLIs when making their decisions on whether to grant an exception and issue the PGWP to students who rely on this exception.

Ongoing Challenge – Full-Time Studies Definition

There are a few issues that still remain that I think can be better addressed in new program delivery instructions.

IRCC has now clarified that full-time student status is now for ‘each academic session of the program or programs’ – replacing full-time for the program.

Full-time studies 

  • They 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

I still find this definition problematic – for one because many schools operate on non-traditional calendars and in many cases there is both financial and career incentive to study part-time in the summer rather than full-time during the semester. I think it is not equal practice to have different sets of rules apply to international students and domestic students.

These rules may further tighten that definition. I think it is an area where more advocacy and putting the ball back into the Court of institutions (but holding institutions to higher standards) may be the best solution.

I’m seeing one of the fall outs of these instructions putting more discretion in the hands of Officers as opposed to institutions. This is one point to monitor as we move forward.

Guideline Applicability Start Date – Remedy for Recent PGWP Refusals 

The rules kick in for applications starting today, with applications received before today considered under the old rules.

Eligiblity of Rules

Client who were refused PGWPs and are still within the initial six month period of being eligible to apply under the new guidelines may want to try and submit, if they meet the other requirements.

What Should Schools and DLI’s Do

I have three initial steps for DLIs and institutions to consider how to take into account these new changes.

  1. Do an Audit of Existing Materials – Website, Print, Agents, Advertising

These changes will undoubtedly require a massive overhaul of materials. It is important, as we have seen from litigation in Nova Scotia, Ontario, and Alberta recently for schools to either take best efforts in disseminating correct information or not disseminating any at all. A half-hearted approach is probably the most harmful.

2. Consider Program Changes

Again, with the new 6 month period to apply for PGWPs schools can start getting quite creative and benefit their students with tack-on programs that could help students secure jobs shortly after obtaining PGWPs in a way they couldn’t before. I can see adding on business and experience-based learning type programs to the end of completed programs. Schools may want to look into these

3. Consider Prospective Policy Changes and Advocacy

Change usually begats change. I have heard that some schools were presumptive in trying to tell agents that they were close to getting PGWPs. That hasn’t occurred with these instructions. Yet, there may be a lot of room for schools to advocate both to the Federal and Provincial Governments for programs whose graduates are bringing major benefit to the Canadian economy and social fabric. More programs to facilitate these individuals, in areas such as theological studies, film and television, and the arts should be pursued – ideally through PNP pathways.

I also see a change not too far in the horizon regarding schools (perhaps first secondary and elementary) being limited by a quota system in the number of Letters of Acceptance they are able to submit.  This is apparently the Australian model, something worth studying as the numbers for study permits increase and refusal decisions no longer are able to withstand judicial scrutiny.

Finally, what to do about international student fraud and the lack of any regulation of education consulting. The capital outflows occurring as a result of the current fee-for-seat system and the presence of global recruiters/agents is not tenable. The system will change as soon as the political will, which in B.C. is clearly there, goes along side.

Interesting times for our international student regime!

 

List of Post-Graduate Work Permit (PGWP) Eligible Schools in Alberta

A colleague, Anna, recently posted this to the CBA Immigration Law listserve which I felt was worth sharing.

She inquired to Alberta Educational authorities about the list of eligible schools and received this following list:

Public Institutions

Alberta College of Art and Design

Bow Valley College

Grande Prairie Regional College

Keyano College

Lakeland College

Lethbridge College

Grant MacEwan University (MacEwan University)

Medicine Hat College

Mount Royal University

Northern Alberta Institute of Technology (NAIT)

NorQuest College

Northern Lakes College

Olds College

Portage College

Red Deer College

Southern Alberta Institute of Technology (SAIT Polytechnic)

The Banff Centre

University of Alberta

University of Calgary

University of Lethbridge

 

Publicly-funded Independent Institutions

 

Ambrose University (formerly Ambrose University College)

Burman University (formerly Canadian University College)

Concordia University of Edmonton (formerly Concordia University College of Alberta)

The King’s University (formerly The King’s University College)

St. Mary’s University (formerly St. Mary’s University College)

 

The Independent institutions listed above are the ones “that operates under the same rules and regulations as public institutions.”  Private Career Colleges, Seminary institutions, bible colleges, flight schools, or language schools DO NOT operate under the same rules as publics

Source: Alberta Education and http://advancededucation.alberta.ca/post-secondary/institutions/public.aspx

Thank you to Anna Kuranicheva, staff immigration lawyer at the Edmonton Community Legal Centre www.eclc.ca for her work digging up this list and confirming this.

I think all provinces should make their lists public and clear and Alberta joining B.C. is a great step.

Restoration Problems – Studies to Begin at a Later Date

I wanted to share a recent response to an inquiry I was provided CIC and why I think it creates unreasonableness – call it reasonableness in the unreasonableness.

Here is the scenario. For whatever reason, your client’s Application for a Post-Graduate Work Permit is refused or never submitted. The client’s study permit has also expired. The 90-day after meeting graduation requirement period in which to apply for a Post-Graduate Work Permit has also lapsed. Restoration is the only option. The restoration date is calculated either 90 days from the expiry of your status (in the event an extension/work permit application was never submitted) or 90 days after you receive a refusal of your application (in the event an extension/work permit application was submitted).

Let us also assume that it is now September. Fall program registration has ended. The program you are interested in starts in the  New Year.

My question was below:

Question:

I have a general question about restoration of student permits for studies to begin at a later date.

Individuals who have their post-graduate work permit (PGWP) applications refused and are no longer eligible for a PGWP due to expired study permits and passage of time have the option to restore their status (in-Canada) as a student on the basis of a student permit extension, which itself is based on a new offer of acceptance.

However if the offer of acceptance is for studies to begin at a later date (i.e. a later semester) is it possible to have a student stay in Canada on a study permit, on deferred enrollment, while not actively pursuing studies for that period of time?

I was unable to find the answer to this on CIC’s available material on study permits and the new study permit rules.

Response:

The determination of whether or not a study permit can be issued for individuals who have applied for a restoration of status with a letter of acceptance for a program expected to commence on a date in the future (e.g. a later semester), rests with the officer assessing the application. It may be determined that a study permit can be issued based on the date the program is expected to commence, or the study permit may be denied because the period of time before the program commences is not considered reasonable. If the study permit is denied the individual must leave Canada and can apply for a study permit at a later date.

The students who have lost their status may also apply for a restoration of status as a visitor. If the restoration of status is approved the individual could remain in Canada, however, they will not be authorized to study, and will still be required to apply for a study permit outside of Canada a later date as per R213.

This is the particular section I have trouble with: “It may be determined that a study permit can be issued based on the date the program is expected to commence, or the study permit may be denied because the period of time before the program commences is not considered reasonable.”

With processing times for a restoration of status frankly “up in the air,” how does one time the restoration application? Without legislative guidance, what does “reasonable mean.” For me, reasonable is three months but for the Officer that may be unreasonable.

It will be interesting to see if there are any refusals from the application of this discretion. Would be fun to challenge this in the Federal Court.

 

A Day One Problem: Post-Graduate Work Permit to Permanent Resident

In December 2014, my colleague Steve Meurrens predicted that the introduction of Express Entry would have a devastating effect on the ability of international students to obtain Permanent Resident status in Canada (see: http://canadianimmigrant.ca/slider/are-options-for-international-students-to-immigrate-permanently-narrowing).

It seems like Steve’s epiphanies have come true. Just this past month I have received no less than 5 inquiries from individuals on the last year of Post-Graduate Work Permits (PGWP) asking about how they can obtain Permanent Resident status.

The challenges are quite clear. Time spent working on PGWPs, while earning some Canadian experience points, do not earn any extra points that appear necessary to obtain an Invitation to Apply. Individuals with PGWPs will have to not only meet the requirements of the Canadian Experience Class or Federal Skilled Worker Programs (at least 1 year of NOC 0, A, B experience), but also likely need either a Provincial Nomination or a Labour Market Impact Assessment.

The Labour Market Impact Assessment, which used to allow for advertising breaks for Employers hiring PGWP holders, now requires a $1000 application fee in addition to the 1 in 4 likelihood of a compliance review. Such burdens are heavy for Canadian employers to bare, particularly when the international graduate is likely entering only a mid-level NOC B position. Furthermore, the advertising exemptions have been removed and Canadian Employers must demonstrate that the PGWP holder is more suitable than Canadian candidates who have many more years of relevant experience and often times higher educational credentials. It is also hard, to make a business case, to pay someone with little experience a prevailing wage that reflects a skilled labour market generally with more experience and demanding hire wages.

One of the biggest problems facing PGWP holders is actually on the front end. Many recent graduates are unable to obtain positions right out of university that are NOC 0, A, B. Many start in NOC C, D positions (often unaware) that there is a requirement to obtain a promotion in order to qualify for Express Entry. Couple this with the fact that options for Entry-Level/Semi-Skilled (EE/SS) workers to obtain Permanent Residence (at least in B.C.) is limited to the currently-closed B.C. Provincial Nomination Program for EE/SS workers.

The Importance of Employer Communication Re: PGWP Status

One of the challenges is that many employees are hesitant to get into the conversation with their employers about their immigration status for fear of job security and other issues. However, this conversation needs to happen and ideally happen at the front end. Unless, it is in an Applicant’s plan to return to their home country following work on a PGWP, continue further studies, or pursue another guaranteed NOC 0, A,B vacancy within two years, not discussing immigration status with an employer can be disastrous. Currently, Canada’s economic immigration programs are all employer driven. If you are to obtain permanent residence in the future an Employer needs to be there to support you – write you a confirmation of employment, make recruitment efforts, provide your paystubs and their own tax/corporate information. Most importantly, they have to put their neck on the line in representations to Citizenship and Immigration Canada (CIC) and Employment and Social Development Canada (ESDC).

Your pathway to permanent residence starts on Day 1. Your employment contract or at the very least, your unofficial understanding with the employer needs to involve your ability to be promoted to a NOC 0, A, B position so you can get at least 1 year of skilled-work experience.

You can check the skill level of your position using the NOC matrix available online. Note that the BC PNP uses the 2011 NOC Matrix (here), which ESDC uses the 2006 NOC Matrix (here) Make sure, however, to obtain proper advice as to the wording of your job duties. Several positions, particularly those designated by Canadian employers who are unfamiliar with the NOC or your requirements to have skilled employment, may inadvertently hire you to a purported “skilled position,” while giving you job duties more akin to a lower-skilled worker.  For example, one may assume that an administrative assistant (http://www5.hrsdc.gc.ca/NOC/English/NOC/2011/Profile.aspx?val=1&val1=1241) and an office support worker (http://www5.hrsdc.gc.ca/NOC/English/NOC/2011/ProfileQuickSearch.aspx?val=1&val1=1411)  would both be considered under the same NOC Code given the similar nature of their duties, but an administrative assistant is a NOC B position (thus qualifying for Express Entry) while an Office Support Worker isn’t (NOC C low skilled position).

It is furthermore important to broach your Canadian employer because of the number of hybrid positions that are subject to classification under lower NOCs by ESDC. A great example of this is in the banking industry where a Customer Service Representative is a NOC C position (http://www23.statcan.gc.ca/imdb/p3VD.pl?Function=getVD&TVD=122372&CVD=122376&CPV=6551&CST=01012011&CLV=4&MLV=4) but a Financial Service Representation is a NOC B position (http://www5.hrsdc.gc.ca/NOC/English/NOC/2011/Profile.aspx?val=6&val1=6235).

There is arguably a ton of overlap between the two positions and a ton of Customer Service Representatives I know who are gaining in seniority begin to take on some of the responsibilities of Financial Service Representatives. Complicating things, I know some banks call their Customer Service Representatives, Financial Service Representatives.

Another complicated matter are individuals who take on hybrid Account Manager (NOC B) and CSR (NOC C) roles. For immigration purposes, these type of positions will be under heavy scrutiny.

Know your Provincial Nomination Programs

Until the non-Express Entry British Columbia – International Graduates Program is announced in the beginning of July, the Express Entry version is a very good option for applicants (http://www.welcomebc.ca/Immigrate/About-the-BC-PNP/Express-Entry-British-Columbia/Express-Entry-British-Columbia-International-Gradu.aspx). Again, one of the challenges is the Applicant has to meet the basic requirements for one of three economic programs – which will require one year of NOC 0, A, B, either prior to coming to Canada and while holding a PGWP. As the International Graduates program requires you to apply within two years of completing your education program, this essentially gives you a two year window to get the requisite experience (assuming you don’t have it).

The International Graduates program is nice because there is no need for previous experience. The Applicant must only demonstrate that they have the means to support yourself and your dependents. For the Skilled Worker program, there is the requirement of several years of work experience, which is usually assumed to be two or more, creating a major time crunch for transitioning from a PGWP.

Regardless, it is important to keep up with the rapidly changing PNP program offerings. For example, on July 1st the BC PNP is reopening several programs, which I forsee may create more options for graduates of particular programs in professions that B.C. views in high demand (possibly LNG, Tech, and Medical fields).

I hope this article provided some insight into the challenges. As always contact me if you have any questions!