Mccuaig Desrochers

International Students who have completed their studies and are in Canada on post-graduation work permits that have recently expired or are soon to expire have been given a lifeline in the form of a new work permit program.

Immigration Minister Marco Mendicino announced on January 8, 2021 that international students who had post-graduate work permits that have recently expired or are soon to expire would be given the opportunity to receive an additional open work permit for an additional 18 months.

The new policy helps to mitigate the impacts of the COVID-19 pandemic on international graduates who have completed their studies and received post-graduation work permits but have been unable to complete the period of work experience necessary to allow them to achieve permanent residence status. 

Many international students have had their plans disrupted by the COVID-19 pandemic. With businesses shuttered and lay-offs being common, many holders of post-graduation work permits have been denied the opportunity to gain valuable Canadian work experience and as a result have found themselves without a viable pathway towards Canadian permanent resident status.

The new 18-month open work permit represents a critical second chance for many former international students who have graduated and obtained post-graduation work permits but have been unable to use those work permits to gain the experience necessary for a successful permanent residence application.

To understand the significance of this new policy, it’s helpful to know a little bit about the post-graduation work permits that are available to international students.

International students who have graduated from a Canadian post-secondary institution have a once-in-a-lifetime opportunity to apply for a post-graduation work permit provided that certain conditions are met. 

Since not all studies will result in post-graduation work permit eligibility, it is important for international students to carefully plan and manage their studies if their goal is to remain in Canada after graduation. In order to be eligible, international students must have completed a program of studies at an eligible designated learning institution in Canada – many private schools are excluded so it is important to check whether an institution’s graduates are eligible for post-graduation work permits before registering (Immigration maintains an online list of eligible institutions for this purpose), the program must be at least 8 months in duration and must lead to a degree, diploma or certificate, the applicant must have maintained full-time student status during each academic session of their program – with the possible exception of their final academic session, and the majority of their credits must not have been obtained via distance learning.

Post-graduation work permits must be applied for while the applicant is within 180 days of holding valid authorization to study in Canada and the validity period of the issued post-graduation work permit will depend on the length of the underlying course of studies.  If the length of the eligible program of study is a least 8 months and less than 2 years, the length of the post-graduation work permit will match the length of the program.  If the program of study is 2 years or longer, the length of the post-graduation work permit will be 3 years. No matter how many programs of study an individual completes in Canada, they can only receive one post-graduation work permit in their lifetime.

As with many other aspects of Canadian immigration law, the pandemic has resulted in the introduction of limited exceptions to some of the usual post-graduation work permit eligibility requirements; for example, there has been some targeted easing of the restrictions on distance learning.

The period that a former international student holds a post-graduation work permit is a crucial time that must be used strategically and with foresight. In most cases, the post-graduation work permit represents the international student’s best, and often only, opportunity to gain the Canadian work experience required by some of Canada’s permanent residence programs. 

For example, eligibility for permanent residence under the Canadian Experience Class requires one year of skilled Canadian work experience; similarly, skilled Canadian work experience is also an important factor in the calculation of the Comprehensive Ranking System (CRS) points which are used to determine an individual’s ranking under the competitive Express Entry System. 

In order to best use a post-graduation work permit to position themselves for permanent residence, it is important for individuals to recognize that not all types of work experience will be considered “Canadian work experience” for the purposes of Canadian Experience Class eligibility or the CRS points calculation – for the work experience to qualify for these purposes, it must be paid work, the work must be in a skilled position (an occupation listed in Skill Type 0, A, or B of the National Occupational Classification matrix), and it cannot have been self-employment, unauthorized work, or work that was gained while engaged in full-time study.

We are often consulted by individuals who are nearing the expiry of their post-graduation work permits and who are hoping to apply for permanent residence status.  It is sometimes discovered that the individual has unfortunately not made the best use of their post-graduate work permits and find themselves without enough qualifying work experience – usually because they were unable to find employment or because they have engaged in the wrong type of employment – rendering them unable to apply for permanent residence until more work experience can be accumulated. Since a post-graduation work permit is literally a once-in-a-lifetime opportunity, individuals are often left scrambling to try to obtain another type of work permit – a task which is often onerous and difficult.

Given the economic upheaval brought on by the pandemic, it is not surprising that many international students on post-graduate work permits have had their plans derailed and by no fault of their own have been unable to accumulate the work experience necessary for a permanent residence application.  In this context, it was sensible for the government to grant such individuals an avenue to obtain an additional open work permit and hopefully giving them a second opportunity to gain the work experience necessary to successfully apply for permanent residence. 

I welcome the new policy and think it will be a great help to many international students who have graduated from Canadian institutions. 

This new policy is part of a suite of creative solutions that the government has introduced during the pandemic to facilitate the immigration process for individuals currently inside Canada.

The need for these types of policies is driven by the fact that immigration to Canada and the entry of international students and foreign workers has been and will continue to be curtailed by the pandemic, and creative solutions are necessary to keep immigration levels up around the government’s target levels. 

The government has often tried to encourage international students to settle in Canada after the completion of their studies.  International students are seen as good candidates for immigration as they have received Canadian educations, typically have strong language skills, and have had the opportunity to integrate significantly into Canadian society. 

Recognizing that international students who have completed post-secondary studies in Canada are well positioned to make significant contributions to Canada, and recognizing that the pandemic has limited the number of international students who will be entering Canada in the near future, it was prudent for the government to introduce this new work permit option as it will allow many of the international students who are already here to get back on a pathway towards permanent residence.

Any individuals who have had post-graduation work permits that expired on or after January 30, 2020 or are expiring soon (expiring four months or less from the date of application), should consider applying for the18-month open work permit available under the new policy.  In order to be eligible, the applicant must still be in Canada and have valid temporary residence status or be eligible for and applying for a restoration of their status.  Applications under this new policy will be open from January 27, 2021 to July 27, 2021.

McCuaig Desrochers LLP is a general practice law firm with Edmonton’s largest group of immigration lawyers (www.mccuaig.com). This article first appeared in the January 2021 edition of the Millwoods Mosaic – the Multicultural Voice of Southeast Edmonton and is intended to provide general information only and should not to be relied on as legal advice or opinion. We invite you to contact one of the members of our experienced immigration group for assistance.

On June 18, 2019, Immigration, Refugees and Citizenship Canada (IRCC) launched two new five-year pilot programs for eligible caregivers. The new programs are intended to make it easier for caregivers to change employers, bring their immediate families to Canada, and apply for permanent residence after obtaining two years of qualifying work experience in Canada.

The previous programs, Caring for Children and Caring for People with High Medical Needs, ended on June 18, 2019. If you have already applied under one of these programs before that date, your application will continue to be processed. If you did not apply under these programs before June 18, 2019, you may be eligible to apply under the new programs.

The new pilot programs are Home Child Care Provider and Home Support Worker. The Home Child Care Provider program is directed at applicants with qualifying work experience under NOC 4411 – home child care provider (experience as a foster parent is excluded). The Home Support Worker program is directed at applicants with qualifying work experience under NOC 4412 – home support worker (experience as a housekeeper is excluded).

These programs offer a pathway to permanent residence for eligible caregivers. Applicant caregivers must have two years of full-time qualifying work experience in Canada and meet other eligibility requirements, such as language level (a minimum CLB 5 in English or NLCL 5 in French in all four language skills), education (equivalent of a completed Canadian post-secondary credential of at least one year), and admissibility requirements related to security, criminality, and medical reasons.

Caregivers who do not yet have two years of work experience may also apply if they have a valid and genuine job offer for one of the eligible occupations. Successful applicants will be issued occupation-restricted work permits. This is a change from the previous programs, which provided employer-specific work permits. The new occupation-specific work permits will allow applicants to work for any employer, so long as the work falls into the listed occupation. This means that it will be easier for applicants to change employers, and employers will not have to apply for Labour Market Impact Assessments (LMIA). Observers have noted that this change will hopefully offer caregivers greater protection from abusive workplaces by allowing them to obtain new employment without waiting for the LMIA process. For some families that rely on caregiving support, however, this change may also make it more challenging to retain caregivers. 

Caregivers who have been issued work permits under one of these new programs can continue to work toward obtaining two years of full-time qualifying work experience. Once this work experience has been completed, applicants can submit proof of this to IRCC to have their permanent residence applications decided.

These programs are open to caregiver applicants who live inside and outside of Canada. If a caregiver has qualifying work experience in Canada under a different immigration program, they are still eligible to apply to these new programs for permanent residence.

Another welcome change under these new programs is the opportunity for caregivers’ families to accompany them to Canada. Caregivers are now able to apply for open work permits for their spouses or common-law partners and study permits for their dependent children.

The new programs each have an annual quota of 2,750 applicants, for a total of 5,500 applicants each year. Immediate family members are not included in these quotas. As the programs may fill up quickly, it will be especially important for caregivers currently working in Canada who need to extend their working status or who are currently eligible for permanent residence to apply as soon as possible.

In addition to these new pilot programs, the Interim Pathway for Caregivers program is also accepting applications from qualifying caregivers from July 8, 2019 to October 8, 2019. To qualify to apply for permanent residence under the Interim Pathway program, an applicant must have valid qualifying status in Canada, at least one year of full-time qualifying work experience in Canada as a home child care provider or home support worker, meet the required language skill levels, and have a Canadian high school diploma or a non-Canada educational credential that is equivalent to a Canadian high school diploma.

The Home Child Care Provider and Home Support Worker programs are positive steps toward recognizing the invaluable contribution caregivers make to our communities and the importance of keeping caregivers’ families together. However, it remains to be seen whether these new programs will provide caregivers with a more efficient and safer pathway to permanent residence.

McCuaig Desrochers LLP is a general practice law firm with Edmonton’s largest group of immigration lawyers (www.mccuaig.com). This article first appeared in the January 2021 edition of the Millwoods Mosaic – the Multicultural Voice of Southeast Edmonton and is intended to provide general information only and should not to be relied on as legal advice or opinion. We invite you to contact one of the members of our experienced immigration group for assistance.

On October 17, 2018, recreational use of cannabis (marijuana) became legal in Canada. The Cannabis Act came into force then, and now governs usage, cultivation, possession and trafficking in cannabis.

It is very important to understand that only cannabis purchased or cultivated legally per the rules and restrictions found in the Act is considered legal. Any cannabis purchased outside of a properly regulated store (or online store), or grown at home without following the proper restrictions, is still considered “illicit” cannabis which is illegal. Having too much legal cannabis or growing too much cannabis is also an offence. Possessing this cannabis can cause serious problems for one’s immigration status if someone is not a citizen of Canada, especially for a worker, student or visitor. Edible cannabis products are still not legal in Canada right now and would be considered “illicit”.

Before legalization, simple possession of small amounts of cannabis was dealt with as a summary offence only under the Controlled Drugs and Substances Act. If a foreign national (worker, student or visitor) was charged with possession of a small amount of cannabis, they would generally not be considered “inadmissible” to Canada for “criminality” and they would not be subject to removal proceedings for this offence (unless there were two convictions not arising out of the same incident). This is because prior to legalization the offence was designated as a summary offence only (this does not apply to larger amounts over 30g). Since legalization, personal possession of cannabis (possession of legal cannabis over the limit or ilicit cannabis) is now classified as a hybrid offence, which puts foreign nationals at serious risk, as under immigration legislation, a hybrid offence is considered an “indictable” offence such that it can attract immigration consequences. Foreign nationals (workers, students or visitors) would likely be subject to removal from Canada for a conviction for possession under the Cannabis Act, and they would not have a right to appeal that removal. It is important to remember this legislation is not retroactive, meaning if someone was convicted before legalization, the previous legislation would apply to them.

In the United States, at the federal level all possession of cannabis is still considered “illicit”. This means that if a Canada Border Services Agency (“CBSA”) officer asks a person trying to enter Canada from the U.S.A. whether they possessed cannabis or purchased cannabis before, and the person answers “yes”, they could be considered to have “committed an offence outside of Canada that is an offence where it was committed and that, if committed in Canada, would constitute an indictable offence (possession of illicit cannabis)” (section 36(2)(c) of the Immigration and Refugee Protection Act). This applies even if someone has tried cannabis in a state where it was legalized (confusing, I know). This provision can also apply to similar admissions for things done in other countries. It is very important to never lie or mislead the government when these questions are asked, as CBSA has wide powers to search your belongings or electronic devices, or investigate further.

When it comes to the unauthorized distribution or sale of cannabis (less than 3kg), under the Cannabis Act, permanent residents (as well as foreign nationals) can now be found inadmissible and subject to removal from Canada, regardless of the actual sentence received. Prior to legalization, unauthorized distribution and unauthorized sale of cannabis (under 3 kg) would only have a maximum sentence of 5 years less a day, which would not make a permanent resident inadmissible unless they actually received more than 6 months in prison as a sentence. Now, the maximum sentence is 14 years and so permanent residents of Canada are at much higher risk (if an offence has a maximum sentence of 10 years or more, permanent residents can be subject to removal from Canada). Importing and exporting cannabis is also not permitted under the Cannabis Act and could result in removal for a foreign national or permanent resident.

Another aspect of the new Cannabis Act to understand are “ticketable offences”; offences that a police officer or peace officer could provide you a violation ticket for, similar to a driving offence. Under the Cannabis Act, officers are provided the discretion to write a ticket for many offences (rather than arresting and charging someone at the police station). Section 52 of the Cannabis Act says that the payment of a ticket is the same as a guilty plea to an offence, but a person would receive an “absolute discharge”, meaning for immigration purposes this would not be considered a conviction. However, if a person contests the ticket and loses, or fails to pay the ticket, then a conviction is entered against them. This conviction could then possibly lead to the process where CBSA finds a person to be inadmissible to Canada, and removal proceedings may begin. As this legislation is so new, we do not yet know exactly how these will be dealt with by immigration authorities, but it is something to be aware of and seek legal advice right away if you are ever given a ticket, before the deadline for payment.

A conviction resulting from failing to pay a ticket, or unsuccessfully contesting a ticket also means that on any future immigration-related applications to travel to Canada or other countries, or applications for an eTA (electronic travel authorization), a person must admit that they have a conviction for an offence on their record, otherwise they could be considered to have misrepresented to the government. A finding of misrepresentation can lead to removal from Canada, and a 5-year bar from the country.

McCuaig Desrochers LLP is a general practice law firm with Edmonton’s largest group of immigration lawyers (www.mccuaig.com). This article first appeared in the April 2019 edition of the Millwoods Mosaic – the Multicultural Voice of Southeast Edmonton and is intended to provide general information only and should not to be relied on as legal advice or opinion. We invite you to contact one of the members of our experienced immigration group for assistance.