Today’s question deals with Implied Status and when is it lost. I recently had a consultation with a kababayan who received a refusal of her work permit application. Here is the scenario:
a) She applied for a study permit before the expiry of her work permit, so she had an implied status and she continue to work.
b) A month later her application for permanent residence under the Alberta Immigrant Nominee Program (AINP) was approved by the province and so she applied for a work permit as per T13 with the support of the positive decision of her AINP application.
c) After submitting the work permit application, she then requested IRCC to withdraw her study permit application. Three weeks after, she received a refusal of her work permit application and was advised to leave Canada since she had lost her implied status when she withdrew her application for study permit before the officer made a decision on her work permit application. IRCC concluded that she has been out of status since the expiry of her previous work permit.
Let us examine first Implied Status. R183 (5) is the provision which creates “implied status”, and it reads as follows: Extension of period authorized for stay (5) Subject to sub-section (5.1), if a temporary resident has applied for an extension of the period authorized for their stay and a decision is not made on the application by the end of the period authorized for their stay, the period is extended until (a) the day on which a decision is made, if the application is refused; or (b) the end of the new period authorized for their stay, if the application is allowed.
Please note that leaving Canada while awaiting a decision on an extension of status applications voids the applicant’s implied status. If an applicant is waiting for an extension of status, then leaves and re-enters Canada, implied status to work or study is lost, and the person reverts to visitor status with no permission to work or study until the renewed permit is issued.
IRCC updated its Program Delivery Instructions regarding Temporary Resident: Implied Status. You can find these instructions below:
Extensions
- If the extension is approved, the date of issue shown on the document represents the date a decision was made. Observations in the remarks box of the document indicate that the applicant maintained their status, as per subsection R183(6).
- If the extension is refused, the applicant is considered in status until the day the decision is made on their application.
- If the extension is rejected (incomplete), the applicant is considered in status until the temporary resident document expires.
Note: If a second application for extension is submitted after the first application and the decision rendered on the first application was
- approved, then the new status applies.
- refused, and the original permit was still valid when the second application was received, then the applicant maintains their implied status until a decision is rendered on the second application, and the applicant is out of status as of the date of refusal on the second application.
- refused, and the original permit was expired when the second application was sent, then the applicant does not have implied status and is considered out of status. (As the applicant’s original permit was expired, they must apply for restoration. The second application was missing restoration fees and would be returned to the applicant for being incomplete)
- rejected for incompleteness, then the application is returned to the applicant. The application is considered to have never been received, no implied status is granted, and the applicant will be considered in status until the original temporary resident document expires.
Going back to the applicant’s question, when did she lose her status? I don’t have information of the validity of the work permit when she submitted her application for a second work permit. Based on the scenario laid out above, her first work permit had expired by the time she applied for the second work permit. She was on implied status when she applied for her study permit. However, she lost the implied status when she withdrew her study permit application and therefore fell out of status because the first work permit was no longer valid. Actually, she should have stopped working while waiting for a decision on her study permit to be issued.
As a consequence, the applicant must either leave Canada or apply for a restoration of her status if it falls within the 90 day time limitation period.
If you have questions regarding the above article you may contact Marjorie at [email protected]
Source: Immigration, Refugees and Citizenship Canada (IRCC)
A word of caution: You should not act or rely on the information provided in this column. It is not a legal advice. To ensure your interests are protected, retain or formally seek advice from a Regulated Canadian Immigration Consultant (RCIC) in good standing of ICCRC. The views expressed in this article do not necessarily reflect those of RCIC’s.
