Thursday, July 21, 2016

THE INS AND OUTS OF IMPLIED STATUS IN CANADA

By Victor Ing,
Special to The Post

I am often approached by people who wish to extend their stay in Canada as visitors, workers or students and have questions about their immigration status that are about to expire.
These temporary residents are generally aware that it is their responsibility to maintain their immigration status in Canada and they know that they must file an application to remain in Canada before the expiry of their current work or study permit or visitor status in order to do that.
Many people, however, are unclear about what happens next or what they are allowed to do after they have filed an application to extend their stay because they no longer have a valid immigration document that tells them what their status is in Canada and what their rights are.
Temporary residents who apply to extend their stay in Canada before the expiry of their respective visitor status or work and study permits have “implied status” in Canada.
Implied status simply means that the visitor, worker or student continues to maintain their legal immigration status in Canada until a decision is made on their application to extend their stay. This allows the applicant to legally reside in Canada even though his or her permit has expired, regardless of how long it takes Immigration, Refugees and Citizenship Canada (IRCC) to process their application.
Implied status is granted by operation of Canada’s immigration laws. This means that IRCC will not send you a document that confirms you have implied status, nor tell you what you can or cannot do while under implied status.
Generally, the only way to show you benefit from implied status in Canada is to keep a filed copy of your application, along with proof that it has been delivered to the appropriate immigration office.
This lack of documentation can be concerning for applicants as well as their Canadian employers or the academic institutions where they study. It is therefore important to understand exactly what you can or cannot do while under implied status.
Immigration savvy applicants will know that persons under implied status can continue to visit, work or study, as applicable, under the same conditions as their expired visitor record or permits until a decision is made on their application to extend their stay in Canada. However, it may not be common knowledge what happens if the same person leaves Canada while under implied status.
Implied status continues to exist even if the person benefiting from it departs Canada. Therefore, they continue to have legal immigration status when they re-enter Canada without having to make a new application to enter the country.
However, if a person departs Canada and later returns under implied status, they can no longer work or study under the same conditions of their expired work or study permits.
For this reason, unless absolutely necessary it is generally advisable to avoid travelling outside Canada while under implied status.
In cases where international travel is unavoidable, make sure that you have a multiple-entry visa to come back to Canada or confirm that you do not need a visa to re-enter Canada. You should also prepare in advance and take the necessary steps, if possible, to make a new application for a work or study permit at the Canadian port of entry. This is often the case, for example, for foreign workers in Canada whose job duties require them to attend business trips outside Canada from time to time but need the ability to resume work immediately for their Canadian employer at the end of the trip.
There is another developing concern for those who are relying on having implied status in Canada. Immigration applications, including those to extend temporary resident status in Canada, are routinely rejected for processing by IRCC because it was found to be incomplete – a form may not have been signed or the appropriate immigration application fees were not paid, just to name a few examples.
In this case, IRCC takes the position that an extension application was never made, which means that the applicant never benefited from implied status.
The result is that the applicant’s temporary resident status will have expired on the same day as their original visitor status or work or study permit validity date.
There have been conflicting decisions from Canada’s Federal Court as to whether IRCC’s position is correct, and this continues to be a live issue for debate.
With current processing times of three or more months for extension applications in Canada, many people are relying on having implied status in Canada as proof of their legal immigration status.
It is important that applicants make timely and complete applications to extend their stay in Canada before the expiry of their current visitor status and work or study permits, but it is equally important for these applicants to know what they are allowed to do while under implied status in Canada.

Victor Ing is a lawyer of Sas & Ing Immigration Law Centre. He provides a full range of immigration services.
For more information go to www.canadian-visa-lawyer.com or email victor@canadian-visa-lawyer.com.
Source: http://www.asianpacificpost.com/article/7602-ins-and-outs-implied-status-canada.html