Renewal of Temporary Work Permits: Employers Beware!

By Isabelle Dongier

Canadian employers must always ensure that their foreign employees are duly authorized to work in the country and remain so authorized during the complete period of their stay. To do so, employers can renew their employees’ work permits. But beware — these renewals are fraught with delays and technicalities. The following outlines just how diligent employers must be to ensure work permits are renewed appropriately.

Golden Rule: Initiate work permit renewal process well in advance
Temporary work permits have an expiration date and the explicit condition that their holder must leave the country by then. Should employment continue beyond the expiration date, a new work permit must be obtained. Many people think that an overstay of only a few days or weeks will not be an issue. But, Immigration Canada takes this rule very seriously and imposes significant penalties on noncompliant workers and their employers. Although a remedial “reinstatement” procedure may be available for 90 days, it remains discretionary and cumbersome. It is therefore important to make sure that all necessary steps to obtain a new work permit are taken well in advance, in light of the current lengthy government processing times.

By way of example, mailed-in applications for work permit extensions with no change in employer are currently processed by Immigration Canada in three to four months. Applications submitted online or applications for a change in employer take approximately two months. Also part of the equation is the first stage procedure (the Labour Market Opinion, or “LMO”), a prerequisite in a number of cases — that can add another two to three months to the process.

Implied status
In light of these delays and of the special circumstances that many individuals and companies are facing, the immigration regulations grant “implied status” to workers who have applied for an extension prior to their current permit expiration date. To benefit from this continued right to remain and work in Canada while awaiting their new permit, applicants cannot leave Canadian soil once their permit has expired, until a new permit is received.

If the employee nevertheless leaves the country, he or she will not be readmitted to Canada as a temporary worker. And if readmitted as a visitor, he or she will have lost implied status and will no longer be permitted to work while awaiting the new permit. In such a case, the renewal application would have to be submitted again.

No implied status
Contrary to popular belief, submitting an LMO or a Quebec Certificate of Acceptance application prior to the expiration of a work permit does not grant implied status to the applicant. Implied status will be granted only by submitting the subsequent application for extension (by mail or online) to Immigration Canada, with all the necessary supporting documents including the payment of processing fees.

In the same way, when an application is sent to a Canadian Consulate rather than submitted to the Immigration Canada office, no implied status is granted. The worker will then have to either receive the new permit or leave Canada before the expiration date.

Change of employer
When a work permit holder already in Canada is offered employment with a new company, a new work permit will have to be obtained prior to starting the new job. The exception is for employees on an “Open Work Permit” (i.e., allowing work with any employer) rather than an “Employer Specific” permit.

The simple fact of applying for a new permit does not in itself grant permission to start a new job. Noncompliance would constitute unauthorized/illegal employment and may result in penalties for both the individual and the company. It is therefore important to have the new work permit before commencing employment with the new employer.

Other changes in employment conditions
Similarly, when an employee’s location or position changes, a new work permit reflecting the changes may have to be obtained prior to the change. When the initial permit was based on an LMO, Human Resources and Skills Development Canada also must be notified and a new LMO application may be required.

Bottom line
When circumstances allow, we strongly recommended that employers initiate the work permit extension application well in advance of the expiration date. This will ensure that the employee receives his or her new permit before the current permit expires. To that end, we recommend that employers keep track of the work permit expiration dates of their foreign staff and have a process in place to plan the necessary steps ahead of time. This should avoid complications due to last-minute applications.

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  Isabelle Dongier
  With over 25 years of experience in Immigration Law, Isabelle Dongier specializes in corporate immigration, helping companies obtain temporary work permits and permanent residency visas for executives, professionals and specialized employees. Her practice focuses on confirmation exemptions under the NAFTA and Canadian legislation, allowing fast-track approval procedures for employees transferred from overseas, professionals, experts and strategic employees. She also counsels clients on various aspects of international mobility such as entries for frequent business visitors, temporary resident visas, work permit exemptions, labour market opinions, bulk work permit applications, medical or criminal inadmissibility, spousal work permits, custom issues, permanent residence and Canadian citizenship.