Learning moments – Applications for work permits for spouses of temporary foreign workers.
From: IMEDA Immigration Education Alliance
2021/04/14
2021/04/14
Hello fellow practitioners. Today’s column deals with applications for work permits for spouses of temporary foreign workers.
Reader’s question
A client obtained an LMIA-exempt work permit under the C11 LMIA exemption code. He now wants to apply for an open work permit for his wife who did not submit a work permit application at the same time as him because they were not married at the time.
My question is which LMIA exemption code can she apply under? I thought of a C11 LMIA exemption as well, or a C41 open work permit, but the latter applies to spouses of skilled workers and I am not sure that she qualifies.
Answer
A person who obtained a work permit under the LMIA exemption C11 to operate a business in Canada could in fact be a skilled worker, subject to the National Occupational Classification of their position. In many cases, C11 work permit holders have managerial positions, so they often fall under the NOC skill type 0. If that were the case (or they have a NOC A or B job), their spouse will most likely be eligible for a spousal open work permit (LMIA exemption code C41).
Unlike the case of work permits for most spouses of international students, it is not sufficient to be the spouse of a work permit holder to be eligible for a spousal open work permit. To be eligible for a work permit under the C41 LMIA exemption, the foreign worker must:
- hold a work permit that is valid for a period of at least 6 months, or, if working under the authority of section R186 without a work permit, present evidence that they will be working for a minimum of 6 months;
- be employed in an occupation that falls within NOC skill type 0 or skill levels A or B; and
- physically reside or plan to physically reside in Canada while working.
Accompanying spouses of work permit holders under other programs such as the Atlantic Immigration Pilot, Bridging Open Work Permit holders or provincial nominee work permit holders, are subject to different requirements which can be found under IRCC’s Program Delivery Instructions regarding International Mobility Program (IMP): Public policy, competitiveness and economy.[1]
Based on the above, if the C11 work permit holder described by our reader has a work permit that is valid for at least 6 months in a NOC 0, A or B occupation, and is, or will be, physically residing in Canada, their spouse will be eligible for a C11 work permit.
If these conditions are not met, the spouse may need to qualify for a different type of work permit, likely with a job offer of her own. This permit may be or may not be LMIA exempt, depending on the position. If the spouse does not qualify for a different work permit, then she will have to obtain a Visitor Record while accompanying her spouse, but will not be eligible to work.
[1] https://www.canada.ca/en/immigration-refugees-citizenship/corporate/publications-manuals/operational-bulletins-manuals/temporary-residents/foreign-workers/exemption-codes/public-policy-competitiveness-economy.html