November 27, 2020

Work Permit Extensions and Implied Status

Posted by Lijing Cao - Bellissimo Law Group PC

By operation of law under s. 183(5) of the Immigration and Refugee Protection Regulations (IRPR), if foreign workers submit applications to extend their stay in Canada before the expiry of work permits, the period of their authorized stay will be extended. During the waiting period, they maintain the legal status in Canada even though their work permits have expired. In this situation, they have “implied status”.

As per s. 186(u) of the IRPR, implied status allows foreign workers to work without a work permit as long as they have remained in Canada after their work permits expired and have continued to comply with the conditions of the expired work permits.

Besides immigration consideration, implied status has practical implications on a foreign worker’s eligibility for government benefits and services, considering that provincial and territorial jurisdictions rely on temporary worker status to assess and determine eligibility to social and health benefits.

On 20 October 2020, the Immigration, Refugees, and Citizenship Canada (IRCC) initiated changes to the processing of work permit extensions in order to facilitate temporary workers on implied status to access benefits and services more easily. Specifically, a temporary worker who has applied online to extend his or her work permit will automatically receive an acknowledgement of receipt letter from IRCC confirming his or her authority to continue working in Canada. The relevant paragraph of the letter reads as follows:

Please attach this letter to your present work permit Number ______ as proof that you are authorized to continue working with the same conditions (ie: employer and occupation) until ______ or until a decision is made on your application, whichever is first. This extended period of work is authorized as per subsection 186(u) of the Immigration and Refugee Protection Regulations. If you leave Canada before a decision is made on your application, you will no longer be authorized to continue working.

These changes would also assist employers in better understanding a foreign worker’s status in Canada. One of the employer’s key responsibilities is to ensure that all employees having a SIN beginning with a “9” are authorized to work in Canada and that they have valid immigration documents. Once a decision has been made by IRCC authorizing the foreign worker to continue working in Canada, the employer should verify the new immigration paper and the expiry date, as well as advising the employee to update the SIN record with the new expiry date at Service Canada.

On the other hand, if the extension application is refused, the temporary worker is considered in status until the date of refusal on their application. However, if the extension is rejected due to incompleteness, IRCC takes the position that the applicant would only be considered in status until the date when the original work permit expires. Considering the potential delay in processing during the COVID-19 pandemic, it is important to make a timely and complete extension application in order to extend the temporary worker’s legal stay in Canada while getting the underlying benefits associated with implied status.

If you require any assistance regarding work permit matters, feel free to contact our office to schedule a consultation.