Question [Holthe Tilleman LLP website]:
Work Permits – Extending Work Permit with Concurrent Filing of In-Canada Spousal Sponsorship
My work permit is expiring and my employer is not able/willing to obtain a new LMIA to extend my work authorization. I have a Canadian spouse. What are my options to extend my work permit without the LMIA?
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You can download a complete, word-for-word transcript of this episode, [spoiler]Welcome to the Canadian Immigration Answers podcast. My name is Mark Holthe and I’m an immigration lawyer with Holthe Tilleman, located in the beautiful province of Alberta, Canada. This podcast is the source of all the answers to the various immigration questions that we receive through our ‘Ask an immigration question portal’ on our firm website. Our website is located at ht-llop.com. And through our ‘Ask an immigration question portal,’ individuals can send us a written request, or written question, or they can also click on our ask an immigration tab, and leave a voicemail message for us.
And we endeavor to answer these general immigration questions, and it’s a way for us to give back to those who maybe will not to necessarily to be able to afford the services of an immigration lawyer. And so this question and answer process is a way for us to give general direction and general advice, and this is not to be taken as legal advice. If individuals need specific legal advice regarding their particular circumstances, we encourage them to go to our website ht-llop.com and book a paid consult; we charge $100 for 30 minutes.
This consult will be preceded by us sending you our intake form, you indicating the areas that you want assistance with and providing some background information. And then that is all reviewed before the consultation so that, that 30 minutes is used to the utmost and that $100 is — the person is receiving value for that money.
Well let’s take a look at our immigration question today. The question reads, I’m a foreign worker working in Canada, and my work permit is soon expiring. What options do I have to stay in Canada legally? I have a Canadian spouse, but my company that I’m working with is not able to obtain a new labor market impact assessment. So this question can really be divided into a number of different areas. In essence individuals working in Canada on work permits where the employer is unable to obtain a new LMIA, is extremely common given the recent overhaul of our foreign worker program in June of 2014.
In many cases, companies will have either exceeded their 10% proportionate rate of foreign workers within their operation, or many foreign workers will have reached their four year cap on April the 1st of 2015. These two unfortunate events often lead to a circumstance in which people are unable to extend their work permit, and face the prospect to having to go home. Now the answer to this question is actually one that is really good. So if you have a Canadian spouse and that spouse is either common law or you are officially married, or even in a conjugal relationship, you may have the ability to file a spousal sponsorship before your work permit expires.
And at the same time include an open work permit application with the spousal application. And we are talking about an in Canada spouse or common law partner application for permanent resident. If you file your spousal and you include an open work permit with that spousal, then it allows for a person to be able to continue to work under the same terms and conditions of the original work permit under what the immigration regulations and indicate or describe as implied status. So essentially despite the fact the work permit may have expired, the person may continue to work without a new labor market opinion, or even without a new work permit, so long as that open work permit that was coupled with spousal is held by CIC pending receipt of the first stage of approval on the spousal application.
When in Canada spousal application reaches the first stage of approval, then CIC will actually issue the official open work permit to this particular candidate while they are waiting for finalization of the spousal. So in this case this is actually a good news story, because this individual will have the ability to apply for open work permit, to allow them to continue working. And that open work permit will sit there so long as the spousal sponsorship application, the first stage is being processed. Now there are a couple drawbacks to this, nothing seems to be quite as rosy as it first appears.
In this circumstance when an individual no longer has a valid work permit, in other words the document has expired, there are usually other government programs or services that are tied to the expiry date on that permit. Social insurance is number — social insurance numbers will expire, drivers licenses have the potentials to expire if they are linked to the expiry date on the work permit. And most importantly provincial health care sometimes also will expire with the expiry of the work permit.
Now according to CIC, the person will be able to continue working under implied status on the work permit. However that same rule does not necessarily apply to the provincial health authorities, or to the driver’s license issuing registry. And so one of the things that we recommend, is that individuals take steps to notify the health authority, and to request a temporary extension. In Alberta for example, they are used to issuing up to a two month extension of health coverage pending receipt of the work permit, provided you can provide evidence that the work permit was applied for as well as the labor market impact assessment. When it comes to driver’s licenses and other things like that it’s really a hit or miss type of a situation.
If the drivers license is expiring, then sometimes we will send them down to the registry to see if the permit can be extended based on a letter from our office confirming that they are invalid implied status. Sometimes that works, sometimes it doesn’t it depends on the registry. And then when it comes to the social insurance number, well CRA is still happy to continue receiving remittances under that number. So it’s not really a big deal if the same number expires. So this is essentially the answer to the question today which was post, which was I have a work permit that’s expiring, but I’m married to a Canadian or I have a Canadian spouse, what options do I have if my employer is not able to secure a labor market impact assessment?
Or even in the case of a labor market impact assessment, as I have talked about here briefly if one has been filed and it just hasn’t been received yet. So in each of those circumstances this open work permit submitted with the spousal sponsorship application when it’s filed, as long as it’s done so before the current work permit expires, that person can continue working under implied status. And that is the answer for today’s question.
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