By: Laura Schemitsch, Canadian Immigration Lawyer, Will Tao, Principal/Canadian Immigration Lawyer, and Dana Kyle, Case Manager at Heron Law Offices
Trend Alert: Confusion and Uncertainty Surrounding the Public Policy Issuing an Open Work Permit to Certain Post-Graduation Work Permit (PGWP) Holders with Four Case Studies
Some international graduates in Canada are eligible for a post-graduation work permit (“PGWP”) if they have graduated from an eligible program from a designated learning institution (“DLI”). The PGWP is an open work permit that enables international graduates to gain valuable Canadian work experience. Skilled Canadian work experience helps graduates apply for the Canadian Experience Class stream of Express Entry. Typically, a graduate of a program that lasted 2 years or more will be granted a PGWP valid for 3 years.
Normally, PGWPs are not extendable, however, on March 17, 2023, IRCC (continuing a 2022 measure) announced that international graduates with a recently expired or expiring PGWP would qualify for an additional or extended work permit to stay in Canada longer and gain additional work experience for up to 18 months if they applied before December 31, 2023 (the “Policy”).
Under this public policy, PGWP holders whose permits expired or would expire between September 20, 2021, and December 31, 2023, were able to maintain or restore their legal status and obtain an open work permit while in Canada to support themselves and fill labour market needs.
How to be eligible for an open work permit under the Policy?
In order to be eligible for an open work permit under the Policy, an Applicant had to meet the following requirements:
- Have a post-graduation work permit (PGWP) that expired or will expire between September 20, 2021, and December 31, 2023;
- Include in the application the fact that you’re applying for an open work permit under the public policy;
- Possess a valid passport;
- Have temporary resident status or have or will apply to restore it.
Some applicants were notified that they would be able to follow a simplified “opt-in” process. Other applicants who were eligible but not invited to “opt-in” had to follow a separate application process.
Interim work authorization (“IWA”) letters were sent on April 5, 2023, to PGWP holders whose permits expired between September 20, 2021, and December 31, 2023. The IWA authorized holders to begin or continue working in Canada until May 31, 2024, while they applied for a new open work permit under the public policy and awaited a decision on the application. Unlike the first opt-in letters, these letters did specify.
Despite these instructions, there seemed to be significant confusion from applicants regarding the specific requirements of the Policy and the Interim Work Authorization in terms of the eligibility to apply, and what was required under the Public Policy in order to extend the applicants’ work permit. As the May 31, 2024, IWA expiry approached, Heron Law Offices received several inquiries from concerned applicants who were experiencing confusion and difficulties with their applications under the Policy.
The following four case summaries illustrate some of the various challenges that self-represented applicants faced as they attempted to access a work permit extension under the Policy.
Case Studies
Case Study #1
The Applicant submitted their Permanent Residence (“PR”) application in 2021. While awaiting the processing of their PR application, the Applicant applied for and was granted a Bridging Open Work Permit (“BOWP”), following the expiration of their 3-year PGWP. Prior to the expiration of the Applicant’s BOWP, they received an email from IRCC indicating their eligibility for a work permit extension under the Policy, and provided them with an IWA allowing them to continue working in Canada until 31 May 2024. The Applicant believed that the IWA gave them legal status in Canada until 31 May 2024, and as such did not apply for the renewal of their BOWP before the expiry date. Following the instructions outlined by IRCC, the Applicant applied for a work permit extension under the Policy in the spring of 2023.
Prior to the Policy’s expiry date, the Applicant’s application was refused on the grounds that the Applicant applied for a work permit after their status expired and the refusal letter indicated that they could apply for restoration. The Applicant re-applied under the Policy with an application for restoration prior to 31 December 2023.
Case Study #2
The Applicant in this case applied for an extension of their Post Graduate Work Permit under the temporary Public Policy in October 2023, however the application was refused. Following the refusal, the Applicant in this case consulted with Heron Law Offices to discuss the reasons for the refusal. Unfortunately, the Applicant was unaware of the special instructions for the public policy which indicated that they needed to specify that they were applying for a work permit extension under the Policy and decided to pursue potential avenues to resolve the situation with the assistance of Heron Law Offices.
Case Study #3
The Applicant was issued a PGWP following their graduation in 2020. In March 2023, the Applicant received an email outlining their eligibility for an 18-month extension of their work permit under the Policy which would allow them to continue to work in Canada until 31 May 2024. Following the instructions received in the email the Applicant received from IRCC, the Applicant “opted-in” to the temporary Public Policy and provided their employer with the letter of Interim Work Authorization (“IWA”) and continued to work. In the fall of 2024, the Applicant had not received their work permit and subsequently contacted IRCC. The Applicant was informed that the opt-in application was not on file and was advised to re-apply. However, the Applicant was not aware of the 31 December 2023 deadline and experienced significant technical difficulties with the re-application process.
Case Study #4
The Applicant, an American citizen, received an Interim Work Authorization under the older policy in August 2022 that allowed the Applicant to work until May 2024. This letter did not specify that the Applicant needed to separately maintain their temporary resident status and indeed advised them not to take any action. The Applicant’s status in Canada expired and then the Applicant received a refusal letter on their Permanent Resident application for not having valid temporary resident status during their work in Canada. This is despite a further complicating factor that they traveled across borders during this time and were re-admitted with temporary resident status on each occasion.
Reconsiderations and Judicial Review
This public policy has led to several individuals being unsure of their status in Canada. We highly recommend that anyone with difficulty interpreting the policy and how it may impact their status or their temporary/permanent resident application in Canada reach out to us.
For the various clients above, we have initiated reconsideration and judicial review of their past decisions and for others, we have had to look for new immigration options to address past issues. Advice has to be tailored, on a case-by-case basis, including whether there are grounds to contest IRCC’s application of the PGWP policy.
If you have questions about this Policy or need assistance with your immigration application, please contact info@heronlaw.ca or book here https://heronlaw.ca/online-booking for a consultation.
