Security delay – how to bridge an expiring PGWP?

[german_in_toronto]

Dear immigration gurus,

I'm a German citizen living in Toronto for over nine years, and I run a successful business there with my Canadian girlfriend (and common-law partner).
I am currently on a post-grad work permit that is about to expire in November. I applied for PR over 20 months ago – via common-law sponsorship, not Express Entry, as we found out that employment at a company in which you own a substantial stake doesn't count as work experience.
We figured fine, whatever, surely it won't take CIC two years to approve an educated, financially stable applicant from Western Europe with a clean record.

It's starting to look like we were wrong. We are stuck at the Security check phase, and it's not clear I will get my PR before my current visa expires in 6 weeks. Bridging visas aren't available for FC applicants AFAIK, so I am now wondering what to do.

Does it make sense to look into a closed work permit? Can my girlfriend, as the CEO and majority owner of our company, sign off on that? Assuming this won't raise eyebrows (given they know about our relationship), can this happen quickly enough to tide me over from November until I get PR? If not, do I get implied status until the permit is approved? Are there other options I don't know about?

Or should we prepare now to leave Canada and only come for visits until this is resolved?

Many thanks!

Some Dates:
Application received: Feb 23, 2017
Request for police certificate: Jan 2018
Eligibility passed: Feb 23, 2018 (exactly a year later)
Request for additional info about my military service: March 2018
MP contacted: June 2018 (no further info)
GCMS notes received: September 2018 (still no news)
MP contacted again: September 2018 (still nothing)

 

[scylla]

I'm assuming you applied outland??

You need an approved LMIA to switch over to a closed work permit. This is often a 4+ month process so you're very short on time. Your girlfriend can certainly try to obtain an approved LMIA. First step is to advertise your job for at least a month to prove no Canadian could be found for the role. Make sure the advertisements meet the LMIA program requirements.

https://www.canada.ca/en/employment-social-development/services/foreign-workers/median-wage/high/requirements.html

 

[1887CAN]

Dear immigration gurus,

I'm a German citizen living in Toronto for over nine years, and I run a successful business there with my Canadian girlfriend (and common-law partner).
I am currently on a post-grad work permit that is about to expire in November. I applied for PR over 20 months ago – via common-law sponsorship, not Express Entry, as we found out that employment at a company in which you own a substantial stake doesn't count as work experience.
We figured fine, whatever, surely it won't take CIC two years to approve an educated, financially stable applicant from Western Europe with a clean record.

It's starting to look like we were wrong. We are stuck at the Security check phase, and it's not clear I will get my PR before my current visa expires in 6 weeks. Bridging visas aren't available for FC applicants AFAIK, so I am now wondering what to do.

Does it make sense to look into a closed work permit? Can my girlfriend, as the CEO and majority owner of our company, sign off on that? Assuming this won't raise eyebrows (given they know about our relationship), can this happen quickly enough to tide me over from November until I get PR? If not, do I get implied status until the permit is approved? Are there other options I don't know about?

Or should we prepare now to leave Canada and only come for visits until this is resolved?

Many thanks!

Some Dates:
Application received: Feb 23, 2017
Request for police certificate: Jan 2018
Eligibility passed: Feb 23, 2018 (exactly a year later)
Request for additional info about my military service: March 2018
MP contacted: June 2018 (no further info)
GCMS notes received: September 2018 (still no news)
MP contacted again: September 2018 (still nothing)

This is a long time for a spousal sponsorship application, considering that 80% of cases are approved within 12 months. Did you submit the application as inland, or as outland?

If your MP couldn’t find out any further information, and your file notes don’t indicate any issues, then it could be that there’s been an error, like the file has accidentally failed to have been progressed to the next stage. If security clearance is the current stage, is it the German officials holding it up? Have you lived in other countries? If so, it there an issue there?

As a foreign national of a visa exempt country, I’m surprised there are issues and delays that aren’t related to something along the lines of medical and criminal admissibility. If you’ve got no criminality issues, that’s a big hurdle out of the way. Have you had a medical? If so, any issues there?

The only other thing I can think of, is that IRCC are awaiting clarification on something relating to your military background. Did you have any issues with the Military Police, dishonourable discharge, etc? Maybe it’s sonething simple and innocuous, but IRCC simply haven’t had a response from the German military or German government on something.

Maybe the best approach from here, as time is of the essence, would be consult with an immigration lawyer that has knowledge of European/EU migration.

 

[german_in_toronto]

Thank you both for your replies. I really, really appreciate it.

I applied inland. I lived in Germany until I was 19; I left after my mandatory military service and have been in Canada ever since.

@1887CAN Medical is fine – both MP case worker and GCMS notes said that the my exam results were only valid until June, but given the weird delay with security they got a higher-up to approve an extension so I don't have to get another one.

Criminality is also a pass – I sent in a copy of my (empty) German police report, and the file notes say that RCMP and US info sharing also came up empty.

My military service was of 9 months of thumb twiddling in a public relations office. Zero issues, honourable discharge. The only thing I can think of is that my former unit doesn't exist anymore, since the military's structural reforms a few years ago ... but someone somewhere should be able to confirm the details of my service nonetheless, I would hope.

Anything else that the security folks might be looking for? I'm scratching my head here.

You suggest contacting a lawyer ... are there ways to find out where my file is stuck that are open to lawyers but not to myself?

@scylla, if there's no way to avoid an LMIA then it looks like it'd be prudent to make preparations to leave anyway ...

 

[1887CAN]

Thank you both for your replies. I really, really appreciate it.

I applied inland. I lived in Germany until I was 19; I left after my mandatory military service and have been in Canada ever since.

@1887CAN Medical is fine – both MP case worker and GCMS notes said that the my exam results were only valid until June, but given the weird delay with security they got a higher-up to approve an extension so I don't have to get another one.

Criminality is also a pass – I sent in a copy of my (empty) German police report, and the file notes say that RCMP and US info sharing also came up empty.

My military service was of 9 months of thumb twiddling in a public relations office. Zero issues, honourable discharge. The only thing I can think of is that my former unit doesn't exist anymore, since the military's structural reforms a few years ago ... but someone somewhere should be able to confirm the details of my service nonetheless, I would hope.

Anything else that the security folks might be looking for? I'm scratching my head here.

You suggest contacting a lawyer ... are there ways to find out where my file is stuck that are open to lawyers but not to myself?

@scylla, if there's no way to avoid an LMIA then it looks like it'd be prudent to make preparations to leave anyway ...

It sounds like your records are completely clean and there shouldn’t be any issues with them.

It’s a really strange delay, I think your military service could well be the cause of the delay, but I’m just guessing. It’s the only thing that jumps out to me. Maybe IRCC have requested confirmation that your service was complete, no disciplinary issues, etc, and they’re yet to receive a response. I can’t see them chasing the results up, they don’t appear to work like that. I can imagine them sending something like a procedural fairness letter to you after a certain period of time, advising that without them receiving the information they require, they’ll be unable to continue processing. Then it’s a case of how was this potential request sent to Germany? E-mail, letter, fax? Did they receive it? Even if they did, has it been misplaced? Mistakenly marked as complete? So many questions, and based on nothing more than a hunch so far.

I wouldn’t be too concerned at the moment with what I’ve stated so far, as I said before, this is complete guess work based upon an opinion that the military service is delaying security clearance. I’m not an expert and could be completely off the mark on this. I just can’t see how it could be anything else,

If I was in your position I’d be calling the call centre, asking the MP for assistance, etc. If you’ve done all that and you still don’t have any progress, I’d be thinking of contacting the immigration minister and asking for their personal intervention. That request will likely fall on deaf ears, but it can’t hurt to try.

As for the lawyer, I’m not entirely sure that they have any additional access to records that you wouldn’t, however, they should be an expert in the immigration processes. Maybe they’ve had this issue with another client, or they happen to know how to resolve this regardless. But more importantly, I’d consult with a lawyer to ensure your can remain in Canada with valid status.

If you can’t extend your PGWP, I think the only option you have is to convince IRCC that you fit the criteria for a CWP, or if they’ll allow you apply for a spousal OWP. You’ll need valid status for both upon application, but the OWP will give you implied status while processing (3-4 months currently). I don’t know if CWPs provide implied status. I also don’t know what the eligibility for these are for someone who currently has a PGWP.

If both of those WP options aren’t viable, then you could apply to change your conditions and remain as a visitor whilst the PR sponsorship continues. If this is your choice, you’ll need to convince then IRCC officer reviewing your application that you’ll cease working and abide by the restrictions of the visitor status. This could be a real challenge for someone coming from a self employed/partnership type of employment. The IRCC officer could believe you’ll be compelled to continue working, given your previous/current involvement in the business, and consequently refuse the application.

At that point, if all options have been exhausted, you’ll likely be given 30 days to voluntarily leave Canada and await the PR processing in Germany. If this is the case, comply with that order. You do not want an exclusion order being issued. You could be barred from re-entry for up to 5 years. Worst case scenario, of course, but it has happened to other people before.

Sorry to be so long winded in response. I wanted to ensure I left nothing out and help in any way I could. I really feel for you in this situation, it’s terrible that you’re facing this dilemma through no fault of your own. I’m confident it’ll get resolved, though.

The big issue that you and your MP have, is you both have no idea what the delay is. I’ve guessed what it could be, you’ve guessed what it could be, and other members of the forum could offer advice too. I’ll conclude by saying that if I were you, with 6 weeks status remaining, I’d hire a lawyer to make sure you don’t accidentally fall foul of a rule, or law, and make the situation worse.

Good luck with this and keep this thread updated as much as you can. There’s a lot of people here, with a lot of experience, who could help in the coming weeks.

 

[canuck78]

It sounds like your records are completely clean and there shouldn’t be any issues with them.

It’s a really strange delay, I think your military service could well be the cause of the delay, but I’m just guessing. It’s the only thing that jumps out to me. Maybe IRCC have requested confirmation that your service was complete, no disciplinary issues, etc, and they’re yet to receive a response. I can’t see them chasing the results up, they don’t appear to work like that. I can imagine them sending something like a procedural fairness letter to you after a certain period of time, advising that without them receiving the information they require, they’ll be unable to continue processing. Then it’s a case of how was this potential request sent to Germany? E-mail, letter, fax? Did they receive it? Even if they did, has it been misplaced? Mistakenly marked as complete? So many questions, and based on nothing more than a hunch so far.

I wouldn’t be too concerned at the moment with what I’ve stated so far, as I said before, this is complete guess work based upon an opinion that the military service is delaying security clearance. I’m not an expert and could be completely off the mark on this. I just can’t see how it could be anything else,

If I was in your position I’d be calling the call centre, asking the MP for assistance, etc. If you’ve done all that and you still don’t have any progress, I’d be thinking of contacting the immigration minister and asking for their personal intervention. That request will likely fall on deaf ears, but it can’t hurt to try.

As for the lawyer, I’m not entirely sure that they have any additional access to records that you wouldn’t, however, they should be an expert in the immigration processes. Maybe they’ve had this issue with another client, or they happen to know how to resolve this regardless. But more importantly, I’d consult with a lawyer to ensure your can remain in Canada with valid status.

If you can’t extend your PGWP, I think the only option you have is to convince IRCC that you fit the criteria for a CWP, or if they’ll allow you apply for a spousal OWP. You’ll need valid status for both upon application, but the OWP will give you implied status while processing (3-4 months currently). I don’t know if CWPs provide implied status. I also don’t know what the eligibility for these are for someone who currently has a PGWP.

If both of those WP options aren’t viable, then you could apply to change your conditions and remain as a visitor whilst the PR sponsorship continues. If this is your choice, you’ll need to convince then IRCC officer reviewing your application that you’ll cease working and abide by the restrictions of the visitor status. This could be a real challenge for someone coming from a self employed/partnership type of employment. The IRCC officer could believe you’ll be compelled to continue working, given your previous/current involvement in the business, and consequently refuse the application.

At that point, if all options have been exhausted, you’ll likely be given 30 days to voluntarily leave Canada and await the PR processing in Germany. If this is the case, comply with that order. You do not want an exclusion order being issued. You could be barred from re-entry for up to 5 years. Worst case scenario, of course, but it has happened to other people before.

Sorry to be so long winded in response. I wanted to ensure I left nothing out and help in any way I could. I really feel for you in this situation, it’s terrible that you’re facing this dilemma through no fault of your own. I’m confident it’ll get resolved, though.

The big issue that you and your MP have, is you both have no idea what the delay is. I’ve guessed what it could be, you’ve guessed what it could be, and other members of the forum could offer advice too. I’ll conclude by saying that if I were you, with 6 weeks status remaining, I’d hire a lawyer to make sure you don’t accidentally fall foul of a rule, or law, and make the situation worse.

Good luck with this and keep this thread updated as much as you can. There’s a lot of people here, with a lot of experience, who could help in the coming weeks.

You can't extend your PGWP. Also think you may struggle getting an LMIA given your partner is an owner in the business. Think your best option is to convert to visitor status before your PGWP ends. I would also contact your MP. They can't do much usually but it is worth a try.

 

[german_in_toronto]

Thanks again @1887CAN and @canuck78! Very valuable insight, and not too long-winded at all.

At the end of the day, my ability to get work done is paramount. If I have to catch a plane and be a digital nomad for a while, then so be it; my partner will have to deal with our clients by herself. But staying as a visitor isn't an option.

If you can’t extend your PGWP, I think the only option you have is to convince IRCC that you fit the criteria for a CWP, or if they’ll allow you apply for a spousal OWP. You’ll need valid status for both upon application, but the OWP will give you implied status while processing (3-4 months currently)

Ahhh, spousal OWP is something I wasn't aware of at all. That sounds like it would be exactly what I need. I'll look into that some more and also whether I can find a lawyer who can help.

I will keep you guys posted. Thank you again.

 

[german_in_toronto]

Doing some further research, I worry that this paragraph ...

If you applied for a different kind of permit

• You cannot do any of the activities allowed by the original work permit. For example, you may have come to Canada as a worker and then applied for a study permit. If so, you must stop working once your work permit expires. After that, you cannot work or study until you get a new permit.

... means that if I were to apply for a spousal OWP, coming from a PGWP, my implied status would allow me to stay but I still couldn't continue working.

Any additional ideas are very welcome!

 

[canuck78]

Doing some further research, I worry that this paragraph ...

... means that if I were to apply for a spousal OWP, coming from a PGWP, my implied status would allow me to stay but I still couldn't continue working.

Any additional ideas are very welcome!

There is no implied status after a PGWP. It is one of the work permits, like IEC, that can not be extended.

 

[german_in_toronto]

Well, I wouldn't be extending the PGWP, I would be applying for a new spousal OWP, which prima facie I'm eligible for. My issue is the wait period until the OWP is granted, regardless of whether or not I get to stay in the country. Or are you saying that because I am currently on a PGWP, I am categorically excluded from getting another form of OWP and I shouldn't even try?

 

[canuck78]

No that you don't qualify for implied status after PGWP so you will have to stop working after it expires until you can get a new work permit.

 

[1887CAN]

Doing some further research, I worry that this paragraph ...

... means that if I were to apply for a spousal OWP, coming from a PGWP, my implied status would allow me to stay but I still couldn't continue working.

Any additional ideas are very welcome!

From how I read it, you’re spot on. If you can submit a spousal OWP application before your current status expires, you’ll be given implied status from the OWP application, not the PGWP.

You would absolutely be required to stop working, that’s very clear for PGWP holders after expiration. The definition of what work is for someone in your line of work is probably somewhat fluid. Either way, I wouldn’t risk working and breaking any laws. However, is providing your girlfriend advice regarding work over dinner one night considered working? She’s your common law partner, no-one can police your conversations. She’s also your business partner, so there’s no real defined work time and private time for self employed couples. This is where it gets complicated for non-lawyers like us.

There’s probably numberous grey areas that are exploited by people in these situations. And this is where, again, I’d stress hiring a lawyer. A few hundred dollars spent on one, could be worth thousands to you down the line. I think in this situation it’s an investment in your business and in your relationship. A lawyer should be able to clearly formulate a plan for you and to ensure you’re not unintentionally breaking any laws.

I’d also file an application to change conditions to a visitor, at the same time as the OWP, just in case the OWP gets returned. This could be overkill, but if the visitor status change is approved, for say, 6 months, you still have status to correct any OWP application issues and be in status. If you’re out of status, the OWP application is on hold until AiP stage.

 

[german_in_toronto]

Alright, so I spoke to an immigration lawyer today and he insisted that if I applied for a spousal OWP, I could continue working. According to him, my current PGWP is a type of OWP, and a spousal OWP is also an OWP, and therefore it's not a "different kind of permit", and any implied status will carry the same OWP conditions. He also suggested that if I attach my AiP/Eligibility letter to the OWP application and file it online, I should get it in a matter of weeks, not months, so it probably won't be an issue anyway.

I'll keep you posted.

 

[1887CAN]

Alright, so I spoke to an immigration lawyer today and he insisted that if I applied for a spousal OWP, I could continue working. According to him, my current PGWP is a type of OWP, and a spousal OWP is also an OWP, and therefore it's not a "different kind of permit", and any implied status will carry the same OWP conditions. He also suggested that if I attach my AiP/Eligibility letter to the OWP application and file it online, I should get it in a matter of weeks, not months, so it probably won't be an issue anyway.

I'll keep you posted.

Awesome! Good news for you both. If a lawyer says it’s ok to carry on working, then I wouldn’t question it.

I believe the term ‘Open Work Permit’ literally just denotes a work permit that doesn’t restrict who you can work for. There are still restrictions on industries, like how spousal OWPs restrict working in healthcare and with children, etc, until you’ve passed a medical and police background checks. So that makes sense that if both the spousal OWP and PGWP are of an open variety, you should benefit from implied status between approval of the new one.

I didn’t think implied status applied to work permits, so I’ve learned something. Your OWP will be valid for 2 years, or the remainder of you passport validity, if less than 2 years. That should cover the remaining processing time.

 

[german_in_toronto]

Awesome! Good news for you both. If a lawyer says it’s ok to carry on working, then I wouldn’t question it.

Thanks for the quick reply! I'm glad you so graciously concede to the lawyer. If you insisted on me being unable to work I really wouldn't know what to do! :‍)

I believe the term ‘Open Work Permit’ literally just denotes a work permit that doesn’t restrict who you can work for. There are still restrictions on industries, like how spousal OWPs restrict working in healthcare and with children, etc, until you’ve passed a medical and police background checks. So that makes sense that if both the spousal OWP and PGWP are of an open variety, you should benefit from implied status between approval of the new one.

Yeah, and I also can't work in the sex trade, it says explicitly on my work permit ... oh well, you can never have it all