In past pieces I have lauded IRCC’s extension of 180 days for students to apply for post-graduate work permits. From a policy perspective, I believe it gives students more time to find a job and prepare a decent application rather than to have to rush and base such an application off an expiring study permit that may or may not be easy to extend based on an institution.
IRCC’s new rules are that the study permit must have been valid sometime within the past 180 days but do not need to be valid at the time of application. I also wrote about how the lapse of a study permit automatically 90 days after completion of studies may also complicate the policy switch and require some sort of extension regardless.
What I didn’t realize at the time, but only did with some more reading and cross-referencing is that some of the policy likely does not work in theory with respect to the regulatory provisions of the Immigration and Refugee Protection Regulations which hold power of law.
Let’s start with the issue of what a student whose study permit is expiring (either naturally or on the basis of the 90 days) who wants to stay in Canada needs to do and how that affects their post-graduate work permit (“PGWP”) eligibility.
For those who switch to visitors in Canada, that means that their PGWPs should not (technically) be processed inside Canada unless they are accompanying a family member which permits them to make an application after entry under R.199 of IRPR.
Application after entry
199 A foreign national may apply for a work permit after entering Canada if they
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(b) are working in Canada under the authority of section 186 and are not a business visitor within the meaning of section 187; – They don’t meet this subject to my analysis below on a possible loophole created.
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(d) hold a temporary resident permit issued under subsection 24(1) of the Act that is valid for at least six months;
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(e) are a family member of a person described in any of paragraphs (a) to (d); – this depends on family members
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(g) applied for a work permit before entering Canada and the application was approved in writing but they have not been issued the permit;
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(h) are applying as a trader or investor, intra-company transferee or professional, as described in Section B, C or D of Annex 1603 of the Agreement, within the meaning of subsection 2(1) of the North American Free Trade Agreement Implementation Act, and their country of citizenship — being a country party to that Agreement — grants to Canadian citizens who submit a similar application within that country treatment equivalent to that accorded by Canada to citizens of that country who submit an application within Canada, including treatment in respect of an authorization for multiple entries based on a single application; or
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(i) hold a written statement from the Department of Foreign Affairs and International Trade stating that it has no objection to the foreign national working at a foreign mission in Canada.
(emphasis added – comments in underline)
The student whose study permit is expired without a family member to boot has no regulatory authority for their PGWP to be processed in Canada unless they utilize an exemption.
Moving on….
Adding to these challenges is the interplay between R. 186(w) which is the provision that allows a former student to work in Canada while awaiting their post-graduate work permit creates major timing issues.
No permit required
186 A foreign national may work in Canada without a work permit
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(w) if they are or were the holder of a study permit who has completed their program of study and
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(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
(emphasis added in underline and bold)
In short, if I am not mistaken (and correct me if I am wrong) – a student who has let their study permit expire (90 days after completion of studies) and is applying within 180-days after graduation is under IRPR at least, in a situation where they have to make an outside Canada application.
Even more contradictory, they cannot work after they submit their PGWP application because they no longer meet the requirements of 186(w)(ii) as their PGWP application is coming after the expiry of their study permit.
Unless…..
My third point. A loophole emerges where it actually makes logical sense for a student who wants to take advantage of the whole 180-days they have to submit their post-graduate work permit to submit another paper-based application (which may be without merits – such as a Significant Benefits WP or frankly any WP application such as an accompanying spouse of a student) that would then authorize them to work until R. 186(w)(ii) until a decision is made.
In short, it is my reading that these helpful policy changes (with good intention) will require regulatory amendment (in addition to just policy) and there may be some individuals caught in the middle of this crossfire of law and policy. Hopefully those regulatory amendments will capture that.
I will have to wait for the Gazette for those instructions.
Immigration law is fun isn’t it?
