Learning moments – Implied status when applying for a WP while under work permit exemption as a researcher

Hello, fellow practitioners! Today’s column deals with implied status; specifically, whether a foreign national under a work permit exemption as a researcher is entitled to benefit from implied status when applying for a work permit.

Please can you give your opinion on the transition of a 120 Day Researcher on a Visitor Record (public policy work permit exempt) who needs to extend his stay and have the right to work. The researcher accepted a new position with the same employer as a Post Doctoral Fellow, which is an LMIA exempt position (similar duties as before but higher pay and new contract). The researcher has an eTA, but has not completed biometrics.

The researcher submitted his work permit application within Canada and received his biometrics information letter soon after. However, his work permit application is now paused whilst he tries to obtain his biometrics. Given the various restrictions/closures imposed by COVID-19 (cannot withdraw application and apply at border) what are his options?

Since he had the right to work but is not going from work permit to work permit, and since his 120 day term cannot be extended since the exemption can only be used once in a twelve month period, I believe he does not have implied status, correct? But can he remain in Canada as a visitor while he waits for his initial work permit or is more required?

Let’s begin by taking a look at the regulations which give a foreign national “implied status”.

Subsection 183(5) of the Immigration and Refugee Protection Regulations (IRPR) states:

The above provision merely extends the period that the foreign national is allowed to stay in Canada. The provision does not give a foreign national the ability to work or to study, unless of course the foreign national is able to work or study as a visitor (e.g. under a work permit exemption). Let’s take the example of a religious leader who is work permit exempt pursuant to R186(l) and is working on a visitor record. She now wants to switch to an LMIA exempt work permit under R205(d). By operation of R183(5), she can remain in Canada as a visitor, and continue to work under the R186(l) exemption until her work permit is decided.

The present situation is analogous, but is complicated by the fact that the work permit exemption for researchers is capped at 120 consecutive days. Once the 120 days is exceeded, the foreign national will not be able to obtain work authorization, even though they have applied for an extension of their stay and are able to remain in Canada as a visitor pursuant to R183(5) pending the disposition of their application.

When we are dealing with the extension of a work permit, then the provision that allows a foreign national to work pending the disposition of his or her application (i.e. implied status) will be R186(u).[1] Will this provision be helpful to the foreign national in this scenario?

R186(u) states:

Subsection 186(u) specifically refers to applications made under subsection 201(1).

Section 201 states:

As can be seen, the foreign national is not applying for a renewal of a work permit under subsection 201(1), and therefore does not meet the requirement in subsection 186(u). This is also confirmed by IRCC’s operational instructions for temporary workers:

Foreign workers entering Canada under the 120-day work permit exemption for researchers or the short-term (15- or 30-day) work permit exemption do not have a work permit, so regulations governing work permit renewals [R201 and R186(u)] do not apply. If they were admitted for 6 months at the port of entry, they can stay as visitors until the end of the period authorized for their stay, but they cannot work past the period allowed by the exemption unless otherwise authorized. Those foreign nationals must submit their initial work permit applications online or via a visa application centre overseas.[2]

Therefore, the client can remain in Canada as a visitor pursuant to R183(5), but will not be able to obtain work authorization as a visitor because he or she has exceeded the 120 day cap imposed on researchers. The client cannot benefit from implied status under R186(u) because the client is not applying for a renewal of their current work permit, which is a requirement of that provision.

With respect to the biometrics issue, I am afraid there is not much that can be done. IRCC’s guidance regarding biometrics collection in Canada during the COVID-19 crisis is as follows:

· all biometrics appointments, including walk-ins, at Service Canada offices are cancelled until further notice

· no application will be refused or closed if you aren’t able to give your biometrics within the period indicated on your BIL

· Canadian ports of entry

· other international biometrics collection locations[3]

“Flagpolling” to get biometrics done carries a certain amount of risk in the best of times. It is certainly not advisable given the current crisis and restrictions.

It is worth highlighting that IRCC has issued a temporary public policy in light of the COVID-19 situation. This policy exempts certain requirements (including the requirement for biometrics) when a temporary worker is changing employment.[4] However, one of the eligibility requirements is that the foreign national held a valid work permit or was authorized to work without a work permit under paragraphs R186(b) to (x) when his or her application for a new work permit or work permit renewal in Canada was submitted. The short-term (120-day) work permit exemption for researchers is not an R186 exemption. Rather, it was launched as part of the Global Skills Strategy. Therefore, the foreign national does not meet this eligibility requirement.

R183(5), R186(u), and R189 are all provisions which relate to implied status. It is important to look at the precise wording of the provisions to determine whether your client will be authorized to work or study while in implied status. In certain scenarios, it is possible for a foreign national on a visitor record (with work authorization) to continue working while waiting for a decision on a work permit application. However, that is not the case in the present scenario as there is a cap on the length of work authorization that cannot be exceeded. As correctly noted in the question, the foreign national still meets the requirements in subsection 183(5), allowing him or her to remain in Canada as a temporary resident at least until the work permit application is decided. When it comes to the requirement for biometrics holding up an application during the COVID-19 situation, refer to the temporary policy cited above and see if your client is eligible.

[1] For study permits, the relevant provision is R189.

[2] https://www.canada.ca/en/immigration-refugees-citizenship/corporate/publications-manuals/operational-bulletins-manuals/temporary-residents/foreign-workers/researcher-exemption.html

[3] https://www.canada.ca/en/immigration-refugees-citizenship/services/coronavirus-covid19/biometrics.html#in-canada

[4] https://www.canada.ca/en/immigration-refugees-citizenship/corporate/publications-manuals/operational-bulletins-manuals/service-delivery/coronavirus/temporary-residence/work-permit/changing-employment.html