By Catherine Sas, K.C.
Special to The Post

In my over thirty years of practice as an immigration lawyer, it has been a fundamental principle of immigration processing that applicants should generally apply for both Canadian temporary or permanent status from outside of Canada. While there are some exceptions to this requirement, they have been few. That all changed during the global pandemic with many workers, students and visitors being stranded in Canada with no ability to travel for months and, in some cases, years. A barrage of Covid-19 immigration policies was introduced addressing many of the problems for persons living here and unable to access standard Canadian immigration processing practices.  With the advent of online applications, it became possible for people to submit applications electronically while in Canada, but have no way to return to their home countries to pick up their permits. Immigration, Refugees and Citizenship Canada (IRCC) demonstrated considerable ingenuity in developing policies for those persons compelled to remain in Canada longer than originally anticipated and without the ability to support themselves. It was this reality that led to the introduction of the policy to allow visitors in Canada to apply for work permits from within the country - a dramatic shift from longstanding Canadian immigration policy. This past Tuesday, February 28, 2023, IRCC ’s Minister Sean Fraser extended this policy for a further two years to February 28, 2025, to allow visitors from within Canada to apply for work permits.

Originally introduced on August 24, 2020, the IRCC痴 policy allowing visitors to apply for work permits from within Canada was a welcome relief for people stuck in Canada during the pandemic. It was also helpful for employers struggling to find a larger labour pool to fill work shortages in their businesses. In recently extending the program, IRCC Minister Sean Fraser specifically mentions one of the factors for the extension of the two-year program was to help alleviate the challenges of employers in finding workers. https://www.canada.ca/en/immigration-refugees-citizenship/news/notices/visit-to-work.html

PREDICTION: A positive experience could lead to this becoming a permanent program! What are the possible limitations to this program becoming permanent? Simply put, abuse.

In recent years our immigration law firm has noticed a dramatic increase in persons coming to Canada as visitors with the ultimate intention of obtaining work permits. Individuals fortunate enough to be granted a visitor record then proceed to the port of entry (POE) to obtain a work permit by being “flagpoled”, sometimes within hours of arrival in Canada. The large number of visitor applicants accessing the “border-crossing-flagpole” approach has led to a Canada Border Services Agency (CBSA) response of issuing misrepresentation findings against applicants barring them from coming to Canada for a period of five years. Why? Because of the longstanding principal that you must apply for the type of permit that you are seeking from overseas rather than from within Canada or at the port of entry. If a person knows that they have an LMIA waiting for them in Canada such that they can apply for a work permit at the POE, then the appropriate approach is to apply for a work permit in your home country before coming to Canada. When you apply to come as a visitor with the ultimate intention of obtaining a work permit, your visitor application isn’t genuine and a misrepresentation determination may reasonably follow.

The Minister’s announcement of the two-year extension of the policy to allow visitors in Canada to apply for work permits is a welcome one. It has all the hallmarks of becoming a permanent program both for the benefit of the individual applicants and their prospective employers and a welcome modification to the longstanding immigration processing policy of requiring work permit applications to be made from outside of Canada. However, as in most pilot programs, the ultimate determinative factor will be in how it is utilized. Applicants are strongly encouraged to embrace the spirit of the policy and access it accordingly. Abusing the program will likely lead to losing the program!

Catherine Sas, K.C. has over 30 years of legal experience. She provides a full range of immigration services and is a leading immigration practitioner (Lexpert, Who’s Who Legal, Best Lawyers in Canada). Go to Canadian-visa-lawyer.com or email [email protected].