Contact Will & Team @ Heron Law Offices

International Students

Award-Winning Canadian Immigration and Refugee Law and Commentary Blog

Blog Posts

Sep 5, 2015

The Problem with the ‘Actively Pursuing Studies’ Study Permit Condition

IMG_20150909_092758Back in one particular undergraduate semester, I will admit that I had a tiny bit of a skipping problem. It was a problem of the academically inconsequential kind. I knew that by virtue of taking certain courses, with only term paper requirements, that I could free up that one course time to pursue my other research, write papers, and organize projects. Arguably had I filled my course schedule with all of the toughest courses at the worst 8am times, I would not have made it to where I am today.

One of the courses in particular was an European History of Economics class that I managed to make approximately three classes for. The first class to the get the syllabus, the second class to hand in my term paper, and the third class to attend the final exam preparation session. I was able to self-read and self-teach my way to an A (not that proud of it looking back).

For an international student, that luxury as of June 2014 no longer exists.

Speaking from my recent experiences with CBSA (an ongoing matter so I will go into no specific detail on it), I know that officers are now armed with an incredibly thick binder of information on each student. They have access to school policies, attendance records, late records, and transcripts. This is in addition to the school’s own requirement to report student progress.

All of this is in relation to the following legislative requirement that was introduced to the study permit changes in June 2014. 

Section 220.1 of the Immigration and Refugee Protection Regulations (IRPR) now reads (emphasis added):

Conditions — study permit holder

220.1 (1) The holder of a study permit in Canada is subject to the following conditions:

  • (a) they shall enroll at a designated learning institution and remain enrolled at a designated learning institution until they complete their studies; and

  • (b) they shall actively pursue their course or program of study.

Individuals found in violation of this provision can be hit with an exclusion order on the basis of subsection 41(a) of the Immigration and Refugee Act  (IRPA) for non-compliance based on the requirement of subsection 29(2) of the act which requires that a temporary resident comply with any condtiion imposed under IRPA or IRPR. This type of removal is also a Specific Removal Order pursuant to subsection 228(c)(v) of IRPR which does not require referral to the  matter of the Immigration Division for an inadmissibility hearing. The decision is essentially made by the Minister’s Delegate at the conclusion of his review with the Applicant (and counsel should he/she obtain one).

Worse yet, is that by operation of s.229(1) and s.229(3)(b) a combination of two inadmissibilities can be lead to a deportation order. A deportation order is a permanent bar on returning to Canada, unless authorized by the Minister.

s.229(3)(b) states (emphasis added):

Exception

(3) The applicable removal order in the circumstances set out in paragraph (1)(f), (g), (h), (j), (l) or (n) is a deportation order if the person

  • (a) was previously subject to a removal order and they are inadmissible on the same grounds as in that order;

  • (b) has failed to comply with any condition or obligation imposed under the Act or the Immigration Act, chapter I-2 of the Revised Statutes of Canada, 1985, unless the failure is the basis for the removal order; or

  • (c) has been convicted in Canada of an offence under an Act of Parliament punishable by way of indictment or of two offences under any Act of Parliament not arising out of a single occurrence, unless the conviction or convictions are the grounds for the removal order.

1(f) covers inadmissibility on health grounds, 1(g) covers inadmissibility for financial reasons, 1(h) covers misrepresentation, and 1(g) failing to appear for examination.

Why this condition is problematic?

First of all, it must be accepted that this provision does serve a purpose. Individuals who come to Canada on study permits but do not study or are simply buying time to try and obtain other permits harm the integrity of the system and arguably take away opportunities for other Canadians.

However, the condition is, on its face, very subjective. It does not specify what level of attendance is required, how many absences or skipped dates can be submitted, or provide a legislated ground for the Applicant to be exempt from the requirements due to certain personal events. For different programs, such as field-based Masters or pHD work, where the study path is not so clear and research breaks are often part of the overall process, the ‘actively pursuing’ requirement adds a layer of uncertainly.

I think that at the very least the provision requires an oral hearing (much like in the case of most misrepresentation). This is a factual inquiry, specific to each school’s policies, requirements, and the overall study program of the student.

For example, I could have easily been found to be not actively pursuing studies by virtue of skipping my Economics class, but by virtue of the result and my overall program I certainly was actively pursuing studies. The legislation states “course” or “program” which makes the application very broad.

Finally, I also find the combinations that can lead to deportation quite troubling. While misrepresentation and failure to appear, combined with a not-actively pursuing studies finding, makes some sense. In the case of financial or health inadmissibility, which itself may be-correlated with the inability to actively pursue studies, a deportation order seems particularly harsh.

My Overall Recommendation to International Students

Go to Class. With the current rules and regulations, it is probably not the best idea to try and plan class-time day excursions or trips with your Canadian boyfriend to Europe during scheduled course time.

I had a good after-hearing discussion with a particularly helpful CBSA Hearings Officer on this issue. From their perspective, it is about the international student constantly updating CIC on decisions such as withdrawing from one institution to attend another or taking certain leave of absences.

I would go a step further and argue this is a tripartite relationship. If I were an international student I would ask the school as much as possible to keep you informed as to the type of notes on your record. For example, should you have permission to take a leave, this leave needs to communicated appropriately not only to professors but to the administrators in charge of providing this information to CIC. Any information gap could lead to negative consequences.

Read More »
Aug 28, 2015

Why is Express Entry So Tough on International Students?

Screen shot 2015-08-28 at 12.49.57 PM

A common theme of many of my recent consultations has been the challenge many international students are experiencing as a result of Express Entry. I am finding more and more second and third-year international students asking me about best practices in planning their paths to permanent residency.

There are several reasons why this path is so difficult

1.  Meeting Basic Economic Immigration Program Requirements Tough for Many International Students

First, just to meet the basic requirement of either the Canadian Experience Class or the Federal Skilled Worker a year of skilled experience (at a NOC 0, A, B level) is required.

For the Canadian Experience Class (CEC), that work experience must consist of one year obtained within the past three years and cannot include work experience obtained while on a study permit (e.g. as a co-op student or during scheduled breaks). It also excludes time working as a contractor, an economic model growing increasingly popular for its Canadian tax-benefits to employers during the economic crisis. For newly graduated international students, who can be granted no more than three-year post-graduate work permits, obtaining that one-year of skilled work experience can be a tall order.

For the Federal Skilled Worker (FSW) Program, the one-year of skilled work experience can be in the past ten years, but that work experience has to have been continuous over a period of a year. Many international students have had to balance work and school, many taking part-time jobs that are not considered continuous under the FSW program requirements

2.  Express Entry Does Not Award International Students Favourable Points

Second, many of the points that are awarded for Express Entry that bring individuals over the threshold are awarded for language and work experience (or a combination of both). For example, under the skill transferability factors in part C for the Comprehensive Ranking Score (“CRS”) criteria, two or more years of Canadian work experience, two or more years of foreign work experiences, or CLB 9+ can double CRS scores in this caregory. Again, work experience is difficult to come by for young individuals and many international students (particularly from non-English speaking jurisdictions) may find it difficult to obtain the CLB 9+ that boost CRS scores

3.  Employers Will Be Hesitant to Pursue LMIAs for Skilled International Graduates

Third, Labour Market Impact Assessments (LMIA) for newly-minted international graduates are difficult to obtain. Holding a valid LMIA for a skilled position awards an Express Entry applicant 600 points and, as of this current date, guarantees them an invitation to apply for permanent residency. Many individuals after the expiry of a three-year work permit find that they require to obtain LMIAs in order to get a work permit that will allow them to work beyond their PGWP.

Unfortunately for them, in most circumstances employers will have to advertise the position to demonstrate that another Canadian cannot fill an international student’s shoes and do not possess equivalent qualifications. In this difficult job market, most non-managerial skilled positions will attract multiple candidates, many of whom are equally, if not, more qualified than the Canadian. Unless the candidate has a unique profile (that can’t include a third language in most cases, as a third language cannot be a job requirement unless it is mandatory for the position), it will be difficult to prove.

Finally, with CIC’s new employer compliance system which subjects Employers to sever administrative monetary penalties that can range up to the millions of dollars, the cost benefit of hiring an international student may not justify the associated compliance cost

4.  Many Skilled Worker PNP Programs Require “Several Years of Work Experience.”

In British Columbia, the BC Provincial Nomination Program Express Entry category, requires that an applicant have several years of related experience in the occupation. More recently, the BC PNP has come down more firmly on the requirement that several years is equivalent to at least two years. The challenge here is most International Graduates are given maximum three-year work permits. This essentially requires them to have two years of skilled experience in that particular NOC occupation. International students who start in entry level, low-skilled positions, such as bank tellers and customer service representatives will find this very difficult to achieve.

 Potential Tips for International Students

Unfortunately for international students, many of those looking for permanent residency two years into their post-graduate work permit will be limited to skilled worker categories. Individuals should begin planning their educational and work paths right away.

For example provincial nomination programs designed for international graduates become have become more important in today’s Express Entry environment. Here in British Columbia, the International Graduates Program (as of the date of this piece) is currently available only through Express Entry. Importantly, eligibility for this program requires applying within two-years of graduation.

While having to meet Express Entry requirements is a challenge, as described earlier, the 600 points provided by the nomination would counteract the low score issues.

Finally, the idea of pursuing further graduate studies prior to obtaining a PGWP may be more attractive. Further studies allow an individual to gain a key qualification that may differentiate them if a LMIA is required. It also may open up other options including post-graduate immigration streams, fellowships, and various professional positions under trade agreements, that could provide the crucial work permit required to get the necessary skilled work experience.

Read More »
About Us
Will Tao is an Award-Winning Canadian Immigration and Refugee Lawyer, Writer, and Policy Advisor based in Vancouver. Vancouver Immigration Blog is a public legal resource and social commentary.
Recent Posts
Categories
Tags
#cdnimm actively pursuing studies Advanced Analytics AI Artificial Intelligence BC PNP Bridging Open Work Permit canadian immigration Chinook COVID COVID-19 Designated Learning Institutions Dual Intention Electronic Travel Authorization Entertainment Law Entrepreneur Immigration eTA Express Entry Extrinsic Evidence Humanitarian and Compassionate Grounds Immigration Appeal Division immigration fraud In-Canada Spousal Sponsorship Inadmissibility International Students Interpretation Judicial Review Misrepresentation Open Work Permit Parent and Grandparent Permanent Residence PGWP Post-Graduate Work Permit Procedural Fairness racism Restoration Settlement Sponsorship Spousal Sponsorship Study Permit Study Permit Refusals Study Permits Technology Temporary Resident Visa The Resignation Letter

Let’s Get in Touch

About Me

My name is Will Tao and I am a Barrister and Solicitor practicing exclusively in the field of Canadian Immigration and Refugee Law. I work for a full-service Canadian immigration and refugee law firm called Heron Law Offices based in Burnaby, B.C.

Contact

2021 © Heron Law Offices is the trade name of Will Tao Law Corporation

he/his/him

Acknowledges that he lives and works on the traditional, unceded territories of the Coast Salish peoples – sḵwx̱wú7mesh (Squamish), sel̓íl̓witulh (Tsleil-Waututh), and xʷməθkʷəy̓əm (Musqueam) nations.

This site reflects my personal opinions and views only and should not be relied on and should be verified prior to any professional use. Please note that none of the information on this website should be construed as being legal advice. As well, you should not rely on any of the information contained in this website when determining whether and how to apply to a given program. Canadian immigration law is constantly changing, and the information above may be outdated. If you have a question about the contents of this blog, or any question about Canadian immigration law, please contact the Author.

Translate »