Learning moments – Restoration of status and the consequences on future applications of having fallen out of status
September 9, 2020
Hello, fellow practitioners! Today’s question deals with restoration of status and the consequences on future applications of having fallen out of status.
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Question:
A visitor to Canada overstayed by a couple weeks, and then filed a restoration of visitor status application.
A few weeks after the restoration application was submitted, the applicant entered into the IEC pool of candidates and received an ITA. She is now preparing her IEC work permit application which has a 20 day deadline.
- Since the visitor restoration decision is not likely to be made before the officer reviews the work permit application, what is the risk of submitting the application while her visitor restoration is still processing?
- Will the officer look at her visitor restoration as the maintenance of legal status ie. would she be considered admissible at that point?
- What would be the best strategy if she is determined to remain in Canada?
Answer:
A temporary resident whose status has lapsed can apply for a restoration of status under s.182 of IRPR as long as they apply within 90 days of losing status, and they continue to meet all the requirements of their original entry. It is important to note, however, that while the law allows a person to apply for restoration of status, the law does not confer status on that person while they are awaiting an answer on their application. In other words, the foreign national applicant for restoration does not benefit from implied status.
A person whose temporary status has lapsed is inadmissible to Canada under s.41 of IRPA due to non-compliance with the Act. Specifically, they were directed to depart Canada before expiry or their status, and they failed to do so. If restoration is ultimately granted and that person is put back into status, then their non-compliance ceases. However, while they are waiting for a response on the restoration application, they continue to be non-compliant and therefore inadmissible under s.41 of IRPA. Having applied for restoration gives them no additional rights in the interim compared to any other individual who is illegally inside Canada.
If the foreign national applies for a work permit while inadmissible, that application will be refused for inadmissibility reasons unless the inadmissibility is resolved before the decision is made.
The only options for this applicant therefore would be to:
- Leave Canada and thereby cure their non-compliance, then submit the work permit application after departing.
- Apply for the work permit without leaving Canada, and pray that their restoration application is granted before the work permit is decided.
- Apply for the work permit without leaving Canada, and apply concurrently for a Temporary Resident Permit to temporarily overcome the inadmissibility in the event that the work permit is adjudicated prior to the restoration request.
Option #1 is legally the easiest and fastest way to fix the non-compliance issue, but you will have to carefully canvass the client’s personal issues to see if leaving Canada is feasible at the current time. You will also want to consider COVID travel restrictions which state that, as of May 8, 2020, if you’re taking part in the Working Holiday, Young Professional or International Co-op categories, you can enter Canada only if you have:
- a valid job offer which includes a written note from your employer in Canada that says
- their business is continuing to operate (whether essential or not)
- you’ll start work after the 14-day mandatory quarantine
- a POE Letter of Introduction
- proof of adequate health coverage
I don’t have enough information about the applicant to know if they would fit the above criteria in order to be able to re-enter Canada if they were to leave. For full instructions, see: https://www.canada.ca/en/immigration-refugees-citizenship/services/coronavirus-covid19/iec.html#s13
Option #2 might be an attractive option but it depends heavily on luck, because there is no way to guarantee that the restoration application will be adjudicated ahead of the work permit application. In addition, you don’t know whether the restoration application will even be successful at this point. That said, depending on your client’s priorities, they might decide that it’s worth the risk.
Option #3 is the most complex and lengthy of the options, because Temporary Resident Permit applications typically have a long turn around time. Depending on which office decides the application, TRPs can take 6 months or more for a decision. On one hand this could be considered as a good thing, because it would delay a decision on the work permit long enough to get answer on the restoration application, and also covers the possibility of the restoration application being refused. However, it also complicates the work permit application, adds thousands of dollars in professional fees for you to do the additional work, and might be complicated to withdraw the TRP application while keeping the work permit application intact, in the event that restoration is granted in the meantime. To put it simply, it’s a messy option, but it does have the advantage of covering all the bases.
To sum it up, this is a complex situation that requires looking at the case from many angles. At the end of the day, you can only advise the clients of the potential pros and cons of each option, but the client is the one who has to make the decision of which possibility to pursue.