A kababayan approached me about the spousal open work permit. He is on a study permit while his spouse has an open work permit. As soon as he finishes his studies, he plans to apply for a PGWP, and so his question is: can his spouse simultaneously apply for an open work permit?
A spouse of an individual who has a PGWP may be eligible to apply for an open spousal work permit using the LMIA exemption code C41 (i.e of spouses of skilled workers). Please note that unlike the spousal work permit for the spouses of international students ( LMIA exemption C42) whereby the student does not need to be employed, the C41 work permit requires that the spouse with the PGWP be employed in an occupation that falls within the National Occupational Classification (NOC) skill levels 0, A or B. Due to the requirement of the C41 spousal work permit, you must
demonstrate that the student who is transitioning to the PGWP is or will be, employed in a professional or technical occupation.
One way to prove that your occupation falls under NOC 0, A or B is by providing a job offer that clearly outlines the duties of the job of the spouse applying for the PGWP. If the student applying for the PGWP has already been working for that employer during their studies, they should provide an employment confirmation letter that stipulates the duties and confirmation that the employment will continue, in addition to the most recent pay stubs.
However, the student who is applying for the PGWP does not have a job offer, or will be working in a NOC level C or D occupation, then the spouse WILL NOT BE eligible for the C41 spousal work permit. In that case, the spouse should apply to change their status from the C42 work permit to a visitor in order to maintain legal status in Canada. As soon as the spouse with the PGWP obtains a professional or technical job, then the spouse will be able to apply for an open work permit again.
The work permit that will be issued to the spouse will have a validity date that coincides with the principal foreign worker’s work permit, unless there is an earlier passport expiry date.
Recently, IRCC announced a program delivery update to C41 General eligibility for spouses of common-law partners of skilled workers below:
[C41] General eligibility for spouses or common-law partners of skilled workersThe applicant for a spousal open work permit must be in a genuine relationship with a principal foreign national who does not hold an open work permit issued under LMIA-exemption code C41 or C42 and meets all of the following:
- holds a valid work permit (employer-specific or open under a non-spousal category) or is authorized to work in Canada without a permit under the authority of section R186, except R186(w)
- is authorized to work in Canada for a period of at least 6 months after the spousal open work permit application is received
- is employed in one of the following :
- a high-skilled occupation (NOC 0, A, or B)
- any occupation classified as NOC 0, A, B, or C when accepted in one of the Atlantic Immigration Program streams
- any occupation and holds a formal nomination pursuant to a federal-provincial-territorial (FPT) agreement concerning permanent residence
- any occupation and holds a selection certificate for permanent residence as a skilled worker pursuant to the Canada-Quebec Accord
- is physically residing or plans to physically reside in Canada while employed
- is in a genuine relationship with the spouse or common-law partner
The principal foreign worker may be employed part-time for the spouse or common-law partner to qualify for this LMIA exemption. Although there is not a standard minimum of hours required, officers have to be satisfied the principal foreign national’s employment or funds will be sufficient to financially support themselves and their family members while they are in Canada.
Officers can assess the skill level of the principal foreign national using the National Occupation Classification matrix.
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.
