Hello fellow practitioners! This week’s question deals with rule against counting qualified Canadian work experience for EE applications, where this experience was obtained while enrolled in a “full time” program of study.
QUESTION:
“I have seen various scenarios where points were given under FSW Express Entry for work experience that was obtained outside of Canada while studying. As per the ministerial instructions, any work experience obtained while studying does not count towards the total work experience. Can you please advise if that is correct and if the applicant is eligible to get points for foreign work experience while studying full time.”
ANSWER:
As you correctly noted, s. 15(7)(a) of the Ministerial Instructions respecting the Express Entry system provides that any work experience that is obtained while an Applicant is enrolled in a full-time program of study cannot be counted towards the Canadian work experience requirement for Experience Entry (“EE”). The provision provides as follows:
(7) For the purposes of this section [i.e. calculating Canadian work experience],
(a) a period of employment during which the foreign national was engaged in
full-time study is not to be included in calculating a period of work experience; (Emphasis added)
[1] The term “full-time study” is explicitly defined in the relevant portion of IRPR which addresses the Federal Skilled Workers (“FSW”) requirements (i.e. ss. 75-85).
In discussing the FSW requirements, s. 83(2) of IRPR defines “full time study” not in terms of the number of courses that the Applicant is enrolled in (e.g. one course vs. four courses), but rather, in terms of the cumulative hours of instruction that the Applicant receives. On this point, s. 83(2) provides as follows:
(2) For the purposes of paragraphs (1)(b) and (b.1) [i.e. defining “full-time study” for a skilled worker or his/her spouse], full-time study means
at least 15 hours of instruction per week during the academic year, authorized under a study permit or under section 188, at a secondary or post-secondary institution in Canada that is recognized by the provincial authorities responsible for registering, accrediting, supervising and regulating such institutions, including any period of training in the workplace that forms part of the course of instruction. (Emphasis added)
[2] However, it is important to mention as a caveat to s. 83(2), that IRCC has long taken the position that Designated Learning Institutes (“DLIs”) have discretion to determine what constitutes “full-time study.”
[3]Therefore, going back to your original question, whether IRCC will award points under Express Entry for work experience that was obtained outside of Canada while studying, will depend on whether the studying was “full time” or not. If it was full-time as you mentioned, then the Applicant will be precluded from obtaining points. However, if it was “part time,” then the Applicant will not be precluded from obtaining points.
[2] Immigration and Refugee Protection Regulations (SOR/2002-227) at s. 83(2)