Revised: Learning moments – Open work permit for a spouse of study permit holder
April 8, 2020
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Hello fellow practitioners. Today’s column deals with open work permits for a spouse who is accompanying their spouse who is on a study permit.
Reader’s Question:
“I have a question about the spousal open work permit. My client is on a study permit while her husband has an open work permit. Once she finishes her studies and applies for a PGWP, can she simultaneously apply for an open work permit application for her husband?”
Answer:
T
o answer briefly, yes, a spouse of an individual who has a PGWP may be eligible to apply for an open spousal work permit, under the LMIA exemption code C41 (i.e. spouses of skilled workers).
However, unlike the spousal work permit for the spouses of students (LMIA exemption C42) whereby the student does not need to be employed, the C41 work permit requires that the spouse with the PGWP be employed in an occupation that falls within the National Occupational Classification (NOC) skill levels 0, A or B.
Due to the requirement of the C41 spousal work permit, when applying concurrently for the PGWP and the spousal work permit, evidence must be included that the student who is transitioning to the PGWP is, or will be, employed in a professional or technical occupation.
This can be done in the form of a job offer that clearly stipulates that the duties of the job of the spouse applying for the PGWP fall under an occupation classified as NOC 0, A or B. If the student applying for the PGWP has already been working for that employer during their studies, they should include an employment confirmation letter, with the duties and confirmation that the employment will continue, in addition to the most recent pay stubs.
If, on the other hand, the student transitioning to the PGWP does not have a job offer, or will be working in a NOC level C or D job, then the spouse will not be eligible for a C41 spousal work permit. In that case, the spouse should apply to change their status from the C42 work permit to a visitor in order to maintain legal status in Canada. Only once the spouse with the PGWP obtains a professional or technical job, their spouse will be able to apply for an open work permit again.
The work permit that will be issued to the spouse will have a validity date that coincides with the principal foreign worker’s work permit, unless there is an earlier passport expiry date.
Once the reader is clear about the timing of applying for the work permit applications, both applications can be submitted online, with due attention paid to the mandatory forms and documents that must be included.
For our reader’s convenience, the eligibility criteria to apply for a PGWP is set out below:
To obtain a post-graduation work permit, the applicant must currently hold valid temporary status or have left Canada.
They must have graduated from an eligible designated learning institution (DLI). They must also submit clear evidence that they meet all of the following criteria:
· They have completed an academic, vocational or professional training program at an eligible institution in Canada that is at least 8 months in duration leading to a degree, diploma or certificate.
· They have maintained full-time student status in Canada during each academic session of the program or programs of study they have completed and submitted as part of their post-graduation work permit application. Exceptions can be made only for the following:
· They have received a transcript and an official letter from the eligible DLI confirming that they have met the requirements to complete their program of study.
Note: The transcript and official letter must be included in a post-graduation work permit application.
Within 180 days of the date of applying for the post-graduation work permit, applicants must also meet one of the following criteria:
· They hold a valid study permit.
· They held a study permit.
· They were authorized to study in Canada without the requirement to obtain a study permit under paragraphs 188(1)(a) and (b) of the Immigration and Refugee Protection Regulations.[1]
[1] See: Immigration, Refugees, and Citizenship Canada, “Post-Graduation Work Permit eligibility requirements” (accessed: April 7, 2020), 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>
