Important August 31 deadline looms for certain out-of-status foreign nationals in Canada

Certain individuals currently inside Canada with expired temporary resident status have until August 31, 2021 to apply for a restoration of their status as a worker, student, or visitor under an existing temporary policy.

The policy provides a temporary exemption from the usual requirement that a worker, student, or visitor must apply for a restoration within 90 days of their loss of their temporary resident status.

Introduced on July 14, 2020 in response to the COVID-19 pandemic, the temporary public policy allows out-of-status individuals who are outside of the usual restoration window to apply for a restoration of their status as long as they had valid temporary resident status on or after January 30, 2020 and their status expired on or before May 31, 2021.

The government introduced this temporary policy recognizing that the pandemic may have caused some temporary residents to fall out of status by hampering their ability to submit complete extension applications in a timely fashion, or by making it difficult for individuals to arrange their departure from Canada.

The ability to apply for restoration of temporary resident has long existed in Canada’s immigration regulations. In order to be eligible for a restoration of temporary resident status, an individual must continue to meet the initial requirements of their stay – such as satisfying the immigration officer that they continue to be a genuine temporary resident who will depart Canada when their authorization to remain in Canada comes to an end.  

While some limited exceptions exist, a restoration is generally not available if the temporary resident has failed to comply with any of the conditions of their stay; for example, an individual who worked while having an expired work permit might not be eligible for a restoration. 

A restoration fee of $200 must be paid in addition to any applicable work permit or study permit application fees, and an applicant must remain in Canada until a decision on the restoration application is made.

The requirement that an application for restoration be made within 90 days of losing status is one that would normally be strictly applied but is being suspended for applications received prior to August 31, 2021.

Significantly, the temporary policy has an additional benefit for recent work permit holders who are applying to restore their status as workers, providing them with a process to request interim working authorization so that they can resume employment while they wait for their restoration application to be processed.

In our experience, individuals sometimes have an incomplete understanding of what it means to be in the 90-day restoration period and misunderstand the effect of a restoration application. It is important to understand that the existence of a 90-day restoration period does not mean that temporary resident status is automatically extended by an additional 90 days beyond the expiry of the status document – we often see individuals who mistakenly treat the restoration period as an additional grace period allowing them to continue as normal for an additional 90 days.

On the contrary, an individual should always try to avoid being in the 90-day restoration period because it means that temporary resident status has already been lost, usually resulting in significant personal upheaval. For example, once a worker’s work permit expires he or she is immediately out of status and no longer has authorization to work – while the worker can apply for a restoration of his or her status as a worker if the aforementioned requirements are met, it is not until the approval of that application that temporary resident status and work authorization are regained.

While the current public policy temporarily facilitates interim work authorization for certain workers, it is important to recognize that individuals with expired work permits would normally have to stop working while they wait for the processing of their restoration applications.

As an individual does not have status or work/study authorization while waiting for the processing of a restoration application – and processing times for restoration applications can be lengthy, it is always preferable that temporary resident status be maintained by submitting an extension application prior to the expiry of the current temporary residence status document rather than applying for a restoration after those documents have been allowed to lapse.

For foreign nationals who have inadvertently or unavoidably fallen out of status, however, a restoration application often represents their final chance to regularize and regain their status – this is often a high-stakes application and individuals may wish to consult with an experienced immigration lawyer and must in all cases be careful to apply within the relevant eligibility period, either prior to the expiry of the temporary policy on August 31, 2021 or within the normal 90 day period which will again apply thereafter.

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 July 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.

This article was written by Nathan Po, a lawyer at McCuaig Desrochers LLP.

©2021 McCuaig Desrochers LLP. All rights reserved. The content of this newsletter is intended to provide general information on McCuaig Desrochers LLP, our lawyers, and recent developments in the law and is not to be relied on as legal advice or opinion.

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