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  • Article: Implied Status – The Explicit Explanation. By Benjamin A. Kranc

    Implied Status – The Explicit Explanation

    by


    An important, and often misunderstood, element of Canadian immigration law is ‘Implied Status’. Simply put, Canadian law provides that if someone is working in Canada, and submits an inland application to renew his work permit before it expires, he is permitted to continue to work until the work permit application is adjudicated.

    Without going too deeply into the black letter law, what the relevant regulations actually says, is that a person is permitted to work in Canada without a work permit…

    “until a decision is made on an application made by them [to renew their work permit], if they have remained in Canada after the expiry of their work permit and they have continued to comply with the conditions set out on the expired work permit, other than the expiry date;” (Immigration and Refugee Protection Regulations s. 186(u))

    This Implied Status has different implications for those who remain in Canada during the relevant period, versus those who may need to exit and return.

    1. For People Who Remain in Canada

    The implication of Implied Status for someone who remains in Canada while a work permit renewal application is pending seems quite simple: he can continue to work even though his work permit is expired. A few issues still need to be considered:

    • Though there is nothing wrong with Implied Status, it can cause some secondary issues, such as the temporary loss of provincial health coverage. (There are often ways to deal with this, but it still something to consider.)
    • Though the wording makes it completely legitimate to work in Canada while in Implied Status, recognize that the wording of the section says that the person is at that time working without a work permit. This is not a paperless work permit – it is just the right to work without a work permit. This puts the person in the same general category as, for example, foreign journalists, foreign performers, and business visitors. Again, there is nothing wrong with this, but it is not the same as working under a work permit. This can raise nuanced questions such as whether this time counts toward time spent working in Canada for the purposes of permanent residence. Notwithstanding this wording, CIC has always recognized this as legitimate work time for such purposes.

    2.  For People Who Exit and Seek to Re-enter Canada

    However, different issues arise when a person wishes to depart Canada and return while in Implied Status. This is not an infrequent occurrence. Some of the issues in this regard include:

    • The wording of the section indicates that the person may continue to work if they have “remained” in Canada after the expiry of their work permit. If someone departs Canada, in accordance with the plain reading of the section, he has not ‘remained’, and as such, Implied Status terminates.
    • Notwithstanding the foregoing, CIC has made some pronouncements to alleviate some of the hardship encountered for those who must leave Canada, and then seek to return. These include:
      • As a first option available to an officer at a Port of Entry, a person may be permitted to return to Canada, however, only as a visitor. Their right to work will not be ‘reinstated’ until the work permit application is adjudicated. (The applicant will also need to show the ability to support himself during the intervening period.)
      • An officer may also issue a work permit if he determines on the CIC computer system that the work permit has been approved at the inland processing centre, where the application was filed.
      • If the inland application has not yet been adjudicated, the officer may permit someone to apply for their work permit at the Port of Entry at that time. Though this is also not an infrequent situation, it is something that cannot be taken for granted.
    • Recognize that it is still possible for an officer to deny entry altogether. The availability of the ‘saving’ provisions noted above is not automatic. In particular, where an officer feels that some action is being taken for expediency to abuse or ‘manipulate’ the system, this could cause issues. This could happen, for instance, where an impatient inland applicant decides to drive to the border and just get his work permit by immediately re-entering Canada. Unless there is a legitimate reason, the renewal process is designed to be conducted inside Canada. (CIC otherwise looks at this as clogging already busy ports of entry.)

    Where possible, we typically advise our clients not to leave Canada while under Implied Status, to avoid some of the issues noted for those who exit and seek to re-enter. We recognize that sometimes departure is unavoidable, and where it is to occur, we seek to mitigate the potential risks (e.g. by providing evidence of the inland application, and submissions as to why a work permit could be issued at the Port of Entry), but the best protection is still just not leaving Canada.

    Implied Status is an important and useful tool for foreign workers in Canada, particularly in view of seemingly ever-lengthening inland application processing times. It is important though to recognize the specific considerations above, in order to ensure that Implied Status does not lead to loss of status.

    The information in this article is for general purposes only, and not intended as legal advice for any particular situation.

    This post originally appeared on Kranc Associates. Reprinted with permission.


    About The Author

    Benjamin A. Kranc

    Benjamin A. Kranc is senior principal of Kranc Associates, a leading Canadian corporate immigration law firm. He has many years of experience assisting clients in connection with Canadian immigration and business issues. Ben is certified by the Law Society of Upper Canada as a Specialist in Immigration Law. He is also on the ‘Who’s Who Legal’ list of foremost practitioners in Canadian corporate immigration, as well as rated as AV Preeminent® in a Martindale-Hubbell peer review. Ben has spoken at numerous conferences, seminars, and information sessions – both for professional organizations and private groups – about issues in Canadian immigration law, and has also taught immigration law at Seneca College in Toronto. In addition, Ben has written extensively. He is the author of a leading text on Canadian immigration law entitled “North American Relocation Law” (Thomson Reuters) and contributing immigration author to the “The Human Resources Advisor” (First Reference Books). Ben can be contacted at (416) 977-7500 ext. 226, or bkranc@kranclaw.com.


    The opinions expressed in this article do not necessarily reflect the opinion of ILW.COM.

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