Public policy exempting certain out-of-status foreign nationals in Canada from immigration requirements: COVID-19 program delivery

A temporary public policy was established on July 14, 2020, to exempt foreign nationals from certain requirements of the Immigration and Refugee Protection Act (IRPA) and the Immigration and Refugee Protection Regulations (IRPR) if they meet certain conditions. The public policy has been extended to August 31, 2021. In addition, the eligibility criteria were expanded to include foreign nationals who were in Canada from January 30, 2020 to May 31, 2021 (meaning foreign nationals who entered Canada between these dates may be eligible). Applications received on or before August 31, 2021 may benefit from this public policy.

This public policy has 2 elements related to restoration objectives:

Restoration [PP.A]
The public policy provides an exemption from the requirement to apply for restoration within 90 days of losing temporary resident status for all foreign nationals (former workers, students and visitors) in Canada. The period of 90 days has been extended for foreign nationals who had valid temporary resident status on or after January 30, 2020 but whose status expired on or before May 31, 2021. They will have until August 31, 2021 to apply to restore their status.
Interim work authorization [PP.B]
The public policy allows former work permit holders with job offers to work while their restoration and work permit applications are being processed. If approved under this public policy, applicants may be authorized to start their employment while they await a decision on their restoration and work permit applications.

The public policy remains in effect until August 31, 2021. Eligible applications received on or before August 31, 2021 may benefit from this public policy.

Policy objectives

The public policy aims to

provide eligible foreign nationals who have fallen out of status during the COVID-19 pandemic with more time to restore their temporary resident status
exempt eligible foreign nationals from the requirement to have complied with certain temporary resident conditions for a work or study permit to be issued
allow eligible foreign nationals applying for a job offer-supported work permit to work while decisions on their restoration and work permit applications are pending

While all in-Canada foreign nationals who have lost their temporary resident status within the specified timeframe will be exempted from the requirement to apply for restoration within 90 days of losing their status, the authority to work while their restoration and work permit applications are being processed will be available only to those who were previously assessed as workers (that is, who held a work permit in the 12 months prior to their application for restoration of temporary resident status), have a job offer, and have submitted an employer-specific work permit application supported by a Labour Market Impact Assessment (LMIA) under the Temporary Foreign Worker Program or an LMIA-exempt offer of employment under the International Mobility Program.

Target populations

A. Foreign national restoring their temporary resident status

Individuals expected to benefit from the exemption from the requirement to apply for restoration within 90 days of losing temporary resident status are in-Canada foreign nationals who have been out of status for more than 90 days.

B. Foreign national seeking interim work authorization

Individuals expected to benefit from interim work authorization are temporary foreign workers who need to apply for restoration and held a work permit valid within the last 12 months. This includes former workers who have applied, or will apply, within the required 90 days for restoration of temporary resident status, and those availing themselves of the public policy exemption to apply for restoration of temporary resident status more than 90 days after of the expiry of their status.

Eligibility requirements

A. Foreign national restoring their temporary resident status

In order to be eligible for restoration under the public policy [PP.A], the foreign national must

have been in Canada with valid temporary resident status between January 30, 2020 and May 31, 2021, remained in Canada since entry, and lost their temporary resident status during this period; and
have applied for restoration of temporary resident status under subsection R182(1) and paid the associated application processing fees under subsection R306(1).

B. Foreign national seeking interim work authorization

In order to be eligible for interim work authorization [PP.B], the foreign national must

have submitted an employer-specific work permit application with correct fees for which a decision has not yet been made, included an application for restoration under subsection R182(1) and paid the associated application processing fee under subsection R306(1);
have held a valid work permit in the 12 months preceding the date on which they submitted their application for restoration of temporary resident status;
intend to work for the employer and/or occupation specified in the LMIA or LMIA-exempt offer of employment included in their work permit application described in (i);
have applied for the public policy exemption using the electronic means (that is, the IRCC Webform) identified by the department for that purpose; and
have requested that the public policy exemption be applied until a decision is made on their work permit application described in (i).

Examples where the interim work authorization would apply:

The foreign national’s work permit expired on December 30, 2020, and they fell out of status. They submitted a restoration and work permit application on March 1, 2021 (within 90 days of losing status), and a decision is still pending on their application.
The foreign national’s work permit expired on March 1, 2021, and they fell out of status. They submitted a restoration and work permit application on August 1, 2021 (under the public policy), and a decision is still pending on their work permit application.

Example where the interim work authorization would not apply:

The foreign national’s work permit expired on March 30, 2019, and they extended their stay in Canada as a visitor. In this case, the foreign national cannot benefit from the interim work authorization under this public policy as they do not meet the eligibility criteria (that is, they did not hold a work permit in the last 12 months).
The foreign national is a work permit-exempt worker who is restoring their status and applying for a work permit with a job offer, but they did not hold a valid work permit in the 12 months preceding the date on which they submitted their application for restoration of temporary resident status.

Note: Paragraph R200(3)(e) provides that an officer shall not issue a work or study permit to clients who have engaged in unauthorized work or study while out of status in the 6 months preceding an application. The public policy waives the regulatory prohibition of permit issuance where there has been unauthorized work or study after May 31, 2021 (or after the expiry of the applicant’s status), unless the foreign national has worked for a prohibited employer described in section R196.1.

Foreign nationals eligible under this public policy are subject to all other legislative obligations and admissibility and selection requirements not exempted under this, or another, public policy.

Application

A. Foreign national restoring their temporary resident status

During the COVID-19 pandemic, temporary residents who remained in Canada have been encouraged to renew their work or study permits to maintain their legal status in Canada. The pandemic, however, has had an impact on the ability of temporary residents to provide complete applications. In addition, many temporary residents have had difficulties finding flights home, with air travel limited around the world.

All foreign nationals (former workers, students and visitors) whose status expired between January 30, 2020 and May 31, 2021 will have until August 31, 2021 to apply to restore their status if they have remained in Canada and continue to meet the requirements of their class (for example, a former worker who needs to restore their work permit status must meet work permit requirements).

To do so, they are required to submit an application to restore status, with the authorization to work or study if applicable, including all corresponding fees. Eligibility for restoration under the public policy will be assessed when the restoration application is assessed, and no additional steps are required from the client or the department.

Note: If a client’s application for an extension is refused, they have 90 days from the date of the refusal letter to apply for restoration.

All in-Canada visitor record, study permit and work permit applications must be submitted electronically. There are exceptions for specific programs that are not available in the online process. See the list of programs that are exempt from the mandatory electronic application requirement.

In order to access the correct online option, clients will be instructed on the IRCC website to use a status expiry date that is within 90 days of the date they are applying. They will then be instructed to put the correct status expiry date on their application form to ensure that they do not misrepresent themselves. This means that only information provided on the application will be considered for processing purposes.

B. Foreign national seeking interim work authorization

Foreign nationals who meet the eligibility requirements for interim work authorization [PP.B] must submit their work permit application for an employer-specific work permit from inside Canada [IMM 5710]. This application may be online or on paper and may have been made prior to the implementation of the public policy.

After submission of their work permit and restoration application, the applicant will have to submit a request for the interim work authorization using the IRCC Webform. Officers will see the following message from the applicant in the IRCC Webform. This will flag that the request is to be considered under this public policy.

Example of template provided in public instructions

Message for former work permit holders who are restoring their status and have a job offer for an employer-specific work permit

Priority Code PP2.RESTOREWORK2020: I am requesting consideration under the Temporary Public Policy to Exempt Certain Out-of-Status Foreign Nationals in Canada from Immigration Requirements during the Coronavirus (COVID-19) Pandemic. I ask that the applicable exemptions be granted until a decision is made on my employer-specific work permit application or it is withdrawn.

I attest that I formerly held a work permit that was valid until [DATE] and I have received a new job offer for [employer NAME] / [occupation NOC CODE]. My LMIA-exempt number is [A#]. OR My LMIA number is [#].

I submitted my application for a work permit online. OR I submitted my application on paper and the postal/courier tracking number is [#].

I intend to work for [employer NAME] / [occupation NOC CODE] as specified in the aforementioned work permit restoration application.

I understand that providing false, misleading or incorrect information is a violation of the Immigration and Refugee Protection Act and may result in enforcement measures against me.

Processing

Step 1: Receipt of IRCC Webform

On receipt of the IRCC Webform, the Client Support Centre (CSC) will separate these requests and move them to a specific folder for the Centralized Network (CN) to access.

CSC may use the following key word to pull public policy-specific requests: PP2.RESTOREWORK2020.

CSC agents will not review or respond to the incoming Webforms to ensure compliance with the public policy. They will simply move the Webforms to the appropriate email folder for CN to assess.

Step 2: Assessment under the public policy

Officers should review the public policy consideration request to determine if both of the following apply:

there is a request for assessment under the public policy
the request has sufficient information to find the work permit application in the Global Case Management System (GCMS)

The following are the applicable procedures if

Request is not complete

The processing officer may send a rejection notice if the IRCC Webform does not include the following:

a request for assessment
sufficient information to confirm the receipt of an employer-specific work permit application (that is, an LMIA, proof that an LMIA was requested or an LMIA-exempt offer)

The rejection notice should use the following template. It is recommended that this simply be a reply to the incoming IRCC Webform request.

Rejection notice template (delete sections that are not applicable)

I have reviewed the information provided in your IRCC Webform submission.

You did not submit a request for consideration under the Temporary Public Policy to Exempt Certain Out-of-Status Foreign Nationals in Canada from Immigration Requirements during the Coronavirus (COVID-19) Pandemic.

You have not provided sufficient information to confirm that you have submitted an application for an employer-specific work permit, which is required for eligibility for the public policy.

You may submit a request by following the instructions for Coronavirus disease (COVID-19): Visitors, foreign workers and students.

Important: If the officer is unable to find the new work permit application, but can find the client in GCMS, a client note with the submission and the response should be added.

Request is complete

If the request is complete, the processing officer should review the documentation in the work permit application to determine if the application is complete.

Requester has not submitted a new employer-specific work permit application

If on review of the work permit application it is determined that the foreign national is not applying for a new employer-specific work permit (for example, the foreign national is applying for an open work permit), the request does not meet the eligibility requirements. The officer may choose not to process the application on a priority basis and may refuse the public policy request using the template for a Negative public policy decision.

Important: A case note should be added to GCMS on the work permit application with the request and response.

Step 3: Work permit application

The following are the applicable procedures if the

Work permit application is not complete

If the work permit application is incomplete, the processing officer will request the additional documentation and give the 90 days allowed during the pandemic period.

They will also provide either a positive or a negative public policy assessment decision as a reply to the IRCC Webform email and add a case note on their decision.

The following are the applicable procedures in the case of a

Positive public policy decision

If the request meets the eligibility requirements, the officer will send the following response:

As per the information provided in your request below, you have been found to meet the eligibility criteria under the Temporary Public Policy to Exempt Certain Out-of-Status Foreign Nationals in Canada from Immigration Requirements during the Coronavirus (COVID-19) Pandemic.

Please print a copy of this email and attach it to your existing work permit or authorization to work as proof of authorization to work for your new employer or occupation until a determination is made on your current employer-specific work permit application or it is withdrawn.

Please note that misrepresenting or withholding material facts relating to a relevant matter that causes an error in decision is a violation of the Immigration and Refugee Protection Act.

Negative public policy decision

If the request does not meet the eligibility requirements, the officer will send the following response to the IRCC Webform email. The processing officer should delete any requirements that don’t apply to the specific request.

I have assessed your request under the Temporary Public Policy to Exempt Certain Out-of-Status Foreign Nationals in Canada from Immigration Requirements during the Coronavirus (COVID-19) Pandemic.

Your application has been refused as you do not meet the eligibility criteria for the public policy, in that

you did not hold a work permit in the 12 months preceding the date on which you submitted your application for restoration of temporary resident status and work permit
you have not applied for an employer-specific work permit under the Temporary Foreign Worker Program or the International Mobility Program
you did not lose your status between January 30, 2020 and May 31, 2021
you have not requested that the public policy exemptions be applied until a decision is made on your work permit application or it is withdrawn
you did not request consideration for the public policy exemption using the electronic means identified by the department for that purpose (the IRCC Webform)

Work permit application is complete

If the application is complete, the processing officer will finalize the work permit application and send the final decision (positive or negative) to the applicant. No further action on the public policy request is needed.

If the decision on the work permit is to refuse the application, the processing officer should indicate in the refusal letter that the public policy assessment is also refused because a decision has been made on their application.

In addition to the refusal reasons for the work permit, officers should enter the following under the “Other” refusal reason: Your request for consideration under the public policy is also refused as you do not meet the eligibility requirements.

Credit: www.canada.ca (2021,Januray, 5) https://www.canada.ca/en/immigration-refugees-citizenship/corporate/publications-manuals/operational-bulletins-manuals/service-delivery/coronavirus/temporary-residence/exemption.html