owp - maintaing legal status

[Ataraxia]

Hi everyone,

I understand that you need to maintain legal status while you wait for your inland PR application to process. I believe that by sending an open work permit at the same time as your PR application gives you implied status until AIP when they will process the owp. Should I still extend my visitor visa in this time? Would love to know what other people have done, and what the right/best thing to do is.

I want to send an owp with my application but it seems they are in the process of changing all their paperwork and I don't know which form is for the owp now. Is it this from, http://www.cic.gc.ca/english/information/applications/extend-worker.asp and if so how do I fill it out? It doesn't have an option for initial work permit, and it asks for employer information.... do I leave that blank? Any help with this would be greatly appreciated, it's all a little overwhelming.

Thank you everyone!

 

[Wicket08]

Hi everyone,

I understand that you need to maintain legal status while you wait for your inland PR application to process. I believe that by sending an open work permit at the same time as your PR application gives you implied status until AIP when they will process the owp. Should I still extend my visitor visa in this time? Would love to know what other people have done, and what the right/best thing to do is.

I want to send an owp with my application but it seems they are in the process of changing all their paperwork and I don't know which form is for the owp now. Is it this from, http://www.cic.gc.ca/english/information/applications/extend-worker.asp and if so how do I fill it out? It doesn't have an option for initial work permit, and it asks for employer information.... do I leave that blank? Any help with this would be greatly appreciated, it's all a little overwhelming.

Thank you everyone!

I didn't know they have a new form for work permit. anyway, you got the right form. i would put a check mark on Initial/ extend temporry resident permit. Then at the details of intend work in Canada question #1, i would put on there Open work permit (while waiting for decision for my permanent residence application through Sposal sponsorship) and just put n/a on question #2 or maybe you can put OPEN.

If you submit it at the same time as the Sponsorship application and PR app, CIC will understand that you are applying for an OWP. So if within 10 months(after CIC receive your application) you should maintain a legal status unless you are not leaving the country within those 10 months, maybe you can just go with the implied status. I did applied for jobs within those 10 months that I waited and I have been maintaining my status here in Canada through a work permit.

Hope these helped.

 

[Ataraxia]

Thank you Wicket08 for your reply.

I find all these forms very confusing. I'm not really sure what to do, but I will keep extending my visa and cross my fingers and hope for the best!

 

[computergeek]

You aren't required to renew your visitor visa while you have an inland application pending - that's the point of an inland application, you have the right to stay in Canada while it is in process.

Pragmatically, having a bit of paper that says you are legally in Canada can be a relief if you have someone question your status versus trying to explain "well, I have this implied status because I've got an inland application" even though the latter is legally true.

 

[Ataraxia]

Thanks Computergeek for your reply.

That is completely how I am feeling, having that bit of paper seems so much better.

 

[CharlieD10]

You aren't required to renew your visitor visa while you have an inland application pending - that's the point of an inland application, you have the right to stay in Canada while it is in process.

Actually, having an Inland application in process doesn't give you any "right" to remain in Canada. It is required that you remain in Canada to have the processing completed, but if you are without legal status, CBSA has every right to remove you regardless.

Applying for an Open Work Permit with your PR application gives you "implied status". It means that you MAY remain in Canada under whatever conditions you had at the time of your application (e.g. some work permits or visitor status) until a decision is made on the OWP application. It is not absolute, that is why your status is "implied".

It is always a person's responsibility to ensure their status in Canada remains legal. Only citizens of Canada have the absolute right to enter or remain in the country. Not even PRs have that right, they must abide by their residency obligation, and running afoul of the law can see them stripped of their PR and deported from Canada.

 

[Ataraxia]

Thank you CharlieD10,

Thanks for confirming that as that is exactly how I understood the situation to be. I have sent an owp application along with my PR application (hopefully I filled it all in correctly). The implied status makes me feel nervous, I would rather have that visa that says I am allowed to be here. So I want to renew my visa before it expires.

It is all pretty confusing, so much information!

 

[computergeek]

Actually, having an Inland application in process doesn't give you any "right" to remain in Canada. It is required that you remain in Canada to have the processing completed, but if you are without legal status, CBSA has every right to remove you regardless.

This is contrary to my reading of IP 8:

5.27. Legal temporary resident status in Canada

Under the current Regulations, applicants in this spouse or common-law partner in Canada class
must have a valid temporary resident status on the date of application and on the date they
receive permanent resident status to be eligible to be members of the class.

However, under the spousal policy, applicants who lack status as defined under the public policy
(see “What is lack of status under the public policy” below) may be granted permanent residence
so long as they meet all the other requirements of the class (i.e., they are not inadmissible for
reasons other than “lack of status.”)

However, applicants who do not have temporary resident status and who cannot be granted
positive consideration under the public policy can be removed at any time. Further, the spousal
policy does not change the requirement to seek necessary authorization to visit Canada or to
work or study here.

What is “lack of status” under the public policy?

For the purposes of the current public policy, persons with a “lack of status” refers to those in the
following situations:

• persons who have overstayed a visa, visitor record, work permit, student permit or temporary
resident permit;

• persons who have worked or studied without being authorized to do so as prescribed by the
Act;

• persons who have entered Canada without a visa or other document required by the
Regulations;

• persons who have entered Canada without a valid passport or travel document (provided
valid documents are acquired by the time CIC seeks to grant permanent residence).

• persons who did not present themselves for examination when initially entering Canada but
who did so subsequently.

Lack of status” does not refer to any other inadmissibilities including, but not limited to:

• failure to obtain any required permission to enter Canada after being removed;

• persons who have entered Canada with a fraudulent or improperly obtained passport, travel document or visa and who have used the document for misrepresentation under IRPA. For greater certainty, persons will be excluded from being granted permanent residence under
this public policy:

if they used a fraudulent or improperly obtained passport, travel document or visa to gain
entry into Canada; and

if this document was not surrendered or seized upon arrival; and

if the applicant used these fraudulent or improperly obtained documents to acquire
temporary or permanent resident status.

Other cases may be refused for misrepresentation if there is clear evidence of misrepresentation
under IRPA, in accordance with the Department’s guidelines.

See Appendix H for the full text of the spousal public policy.

It is always a person's responsibility to ensure their status in Canada remains legal. Only citizens of Canada have the absolute right to enter or remain in the country. Not even PRs have that right, they must abide by their residency obligation, and running afoul of the law can see them stripped of their PR and deported from Canada.

Actually, I would disagree with this characterization. My understanding based upon my own readings is that at the present time Canadian law grants a PR the right to enter as well. Thus, if a PR presents herself at the POE and the officer determines she is not in compliance with the PR residency obligation she will be issued a removal order. But she will be permitted to enter Canada.

The successful execution of the removal order strips the person of permanent residency at which point she becomes a foreign national and has no right of entry and may be expelled from Canada. Except for very unusual circumstances, a citizen cannot be stripped of citizenship and thus cannot become a foreign national.

I would agree that the Charter only guarantees the right of entry to Citizens, not to PRs (Section 6).

 

[CharlieD10]

Actually, I would disagree with this characterization. My understanding based upon my own readings is that at the present time Canadian law grants a PR the right to enter as well. Thus, if a PR presents herself at the POE and the officer determines she is not in compliance with the PR residency obligation she will be issued a removal order. But she will be permitted to enter Canada.

Many PR's are given removal orders inside Canada for failing to comply with their residency obligation. And very nearly as many are not even permitted to board a plane to get to Canada because, having failed to observe their obligation, they are unable to convince an officer outside of Canada that they should be issued a travel permit so they can enter Canada. If PR's had a "right" of entry, that scenario would be impossible or "ultra vires" the intent of the Act.

Processing manuals are Guidelines ONLY. They are not binding on officers, nor are they to be read as conferring rights outside of the Act and Regulations. The Act says all foreign nationals are responsible for the legality of their status in Canada, and anyone not in compliance with the law can be removed, Inland application in process or not.

 

[computergeek]

Many PR's are given removal orders inside Canada for failing to comply with their residency obligation. And very nearly as many are not even permitted to board a plane to get to Canada because, having failed to observe their obligation, they are unable to convince an officer outside of Canada that they should be issued a travel permit so they can enter Canada. If PR's had a "right" of entry, that scenario would be impossible or "ultra vires" the intent of the Act.

Processing manuals are Guidelines ONLY. They are not binding on officers, nor are they to be read as conferring rights outside of the Act and Regulations. The Act says all foreign nationals are responsible for the legality of their status in Canada, and anyone not in compliance with the law can be removed, Inland application in process or not.

I think we're actually agreeing here. Note that once a removal order comes into force for a PR, or a PRTD is refused, the person ceases to be a permanent resident of Canada and is a foreign national. Indeed, this is why the current government is trying to change the manner in which PR is surrendered (so one can effectively fill out a form and surrender PR.)

As for the OP's original question, I've never varied my advice about maintaining status, but I've been told multiple times that this is not necessary while an inland PR application is in process. I've never understood the basis for this argument, but I've seen it made so many times I have resorted to simply pointing out that having a piece of paper saying you are in status is still the best course of action. There is a high degree of subjectivity involved here (I read one case where someone had overstayed by several years, this fact was known to CBSA and they pointedly chose not to do anything in his particular situation. Clearly, officers have broad discretion, both positive and negative, which makes it difficult to provide any sort of definitive answer.)

Processing manuals establish policy and at least in Federal Court are often used to identify the correct manner in which a case should be processed by CIC. While the officer may have the right to deviate from this, I have seen many FCC cases in which the officer's decision is overturned because they did not follow that policy. Being able to point to a policy manual and say "this is why I'm in compliance" may not be legally binding, but will still be compelling to a CIC/CBSA officer reviewing the case.

As to the OP: I still would make sure I have a document saying that I'm in status if at all possible. I'm being pragmatic here, not legalistic - it's like buying insurance.

 

[ccgirl39]

thank you computergeek. you are giving me hope here...