Learning moments – Post-Graduation Work Permits (“PGWP”) and the interplay between the IRCC Operational Instructions and s. 222 of IRPR

Hello fellow practitioners! This week’s question deals with Post-Graduation Work Permits (“PGWP”) and the interplay between the IRCC Operational Instructions and s. 222 of IRPR.

“Hello,

IRCC’s instructions published on https://www.canada.ca/en/immigration-refugees-citizenship/services/study-canada/work/after-graduation/apply.html) (see also:

https://www.canada.ca/en/immigration-refugees-citizenship/corporate/publications-manuals/operational-bulletins-manuals/temporary-residents/study-permits/post-graduation-work-permit-program/permit.html) provide that a student may now apply for a post-graduation work permit (PGWP) within 180 days after graduation if their study permit is still valid.

However, the instructions are silent on the implications of s. 222 of IRPR: (1) A study permit becomes invalid upon the first to occur of the following days: (a) the day that is 90 days after the day on which the permit holder completes their studies… (https://laws-lois.justice.gc.ca/eng/regulations/sor-2002-227/page-48.html#h-689308)

Scenario: a student graduates in May, her study permit is valid until December, and she’s planning to travel and then apply for PGWP in November.

Question: Will her Study Permit be considered valid after the 90 days after graduation? Or will it be invalid by operation of s. 222?”

The question you posed addresses a very interesting interplay between the Operational Instructions on PGWPs and s. 222 of IRPR.

Unfortunately, the Operational Instructions are not completely clear as to what IRCC means by “valid,” a term that on its face appears to mean “un-expired.” However, this term also has a different definition when it comes to Study Permits (“SP”).

As you correctly noted, the Operational Instructions on PGWPs provide that an applicant has 180 days to apply for a PGWP after graduation if their study permit is still valid. Before 2019, this used to be only 90 days.

Within 180 days of the date of applying, an applicant must also meet one of the following three criteria:

In other words, generally speaking, there are two important deadlines to keep in mind:

An applicant needs to be within both ranges of the 180 days in order to be eligible to apply for a PGWP. The validity of the SP refers to a different and separate rule, namely, R222 of IRPR[2]. By virtue of that rule, a SP becomes invalid after 90 days following the date of completing the program, or when a students drops out of school. The reason for this requirement is to ensure that international students do not stay indefinitely in Canada when they are not studying even though the SP has not expired.

The upshot is that a PGWP applicant can apply outside of Canada within 180 days of graduation, regardless of whether it is more than 90 days after program completion. The invalidity of the SP does not affect a PGWP applicant who has left Canada.

However, if the PGWP applicant is applying from within Canada, at the time of applying he or she must have a “valid” study permit or have switched to visitor status. Thus, a PGWP applicant applying from within Canada must apply for the PGWP within 90 days OR change status to visitor status for the permit not to become “invalid”.

In the case of the IMEDA reader, I would recommend that if more than 90 days have transpired since graduation, the PGWP applicant apply abroad. Otherwise, if the PGWP applicant would like to remain in Canada after 90 days of graduating, it is better for her to switch status to visitor status. That way, she can still apply within 180 days, but not be in the situation that her SP has been deemed invalid and she is now relying on it for status.

[1] IRCC, Operational Instructions and Guidelines, “Post-Graduation Work Permit eligibility requirements,” online: <https://www.canada.ca/en/immigration-refugees-citizenship/corporate/publications-manuals/operational-bulletins-manuals/temporary-residents/study-permits/post-graduation-work-permit-program/eligibility.html>

[2] Immigration and Refugee Protection Regulations (SOR/2002-227) at s. 222, online: <https://laws-lois.justice.gc.ca/eng/regulations/sor-2002-227/page-48.html#h-689308>