In this series to date, we have examined the requirements and limitations of the work authorization that international students may be granted while pursuing their program of study, as well as the most important considerations for the employers that hire them. In this final installment, we will consider whether an employer may hire, or continue to employ, a foreign national who has completed their program of study.
Following the successful completion of their education at a post-secondary institution in Canada, many former international students seek to enter the Canadian labour market. In making this transition, this new segment of the workforce forms a valuable, home-grown resource: a primarily young pool of talent that has been fostered by Canadian universities and colleges.
In apparent recognition of the contributions that this pipeline of new talent has the capacity to make to the Canadian economy, Immigration, Refugees and Citizenship Canada (IRCC) previously created the post-graduation work permit (PGWP) program. The stated purpose of this program is to allow [foreign national] students to gain valuable Canadian work experience after graduating from eligible Canadian designated learning institutions (DLIs).
The PGWP program holds an important place in the Canadian immigration landscape. Indeed, the existence of this work permit is likely a factor that many prospective international students consider when they choose to pursue higher education in Canada. However, as with any immigration program, the PGWP’s requirements and related processes are not always convenient.
Significant changes have recently been made to the PGWP program. While an in-depth discussion of these changes is beyond the scope of this post, it is relevant to note here that PGWPs may no longer be issued at a Canadian port of entry.
All graduating international students seeking a PGWP are now required to file an online application with the inland processing office. This method of application, subject to the capacity and speed of IRCC’s inland office, is most often a lengthy one. At the time of writing, inland processing times are posted at 181 days, and they have been even longer in the past.
To ensure that recent international graduates seeking a work permit in Canada are not needlessly idle, the Immigration and Refugee Protection Regulations (SOR/2002-227) (IRPR) provides for an interim period of work authorization[1]. This provision will allow qualifying applicants to begin their post-student lives while their inland work permit applications are in process and avoid the need to wait for the potentially lengthy processing times to run their course.
Notably, the interim work authorization provided by R186(w) benefits recent graduates seeking any category of work permit. Nevertheless, this provision is most often used in the context of a PGWP, since this is the work permit that most graduating international students will qualify for.
Can I hire this candidate before they have a work permit?
At the outset of this discussion, it is useful to recall when an international student’s work authorization will end. Regardless of the source of this authorization, international students must immediately cease any form of employment as soon as they receive any written confirmation from their educational institution that they have completed their program of study (e.g., a transcript, an official letter or even an email). At this juncture, the challenge for an employer is to discern if, and when, they may continue to employ this soon-to-be graduate.
Pursuant to R186(w), an international student who qualifies for the PGWP (or any other category of work permit) will be authorized to work, on a full-time basis, if:
- They hold or previously held a study permit and have successfully completed their program of study.
- They applied for a work permit before the expiry of their study permit, and a decision on this application has not yet been made.
- They were authorized to work off-campus, under R186(v), during the validity period of their study permit.
The last requirement was considered in some detail in Part 1 of this employer’s guide. By way of a brief summary, R186(v) authorizes international students who meet the following requirements to work off-campus during their program of study:
- They hold a valid study permit, which contains a condition allowing the student to accept employment off-campus.
- They are enrolled as a full-time student[2] at a DLI.
- Their study program is either a post-secondary academic, vocational or professional training program, or a secondary-level vocational training program in Québec.
- Their study program is at least six months in duration, and leads to a degree, diploma or certificate.
- Although they are permitted to engage in full-time work during a regularly scheduled break between academic sessions, they work no more than 24 hours per week during a regular academic session.
It is important to keep in mind that R186(w) will only provide work authorization to those who apply for a work permit prior to the expiry of their study permit. In this regard, it may be surprising to learn that a study permit can expire before the document’s expiry date. Indeed, a study permit will become invalid: (1) if the international student ceases to be enrolled at their DLI (prior to completing their study program, (2) 90 days after the international student completes their study program or (3) if the study permit is cancelled[3].
Isn’t this just “maintained status”?
As the work authorization provided under R186(w) applies while a recent graduate’s work permit application is in process, this authorization is undeniably similar to the “maintained status” (previously known as “implied status”) provided under R186(u). Nevertheless, they are distinct forms of work authorization, each with their own set of eligibility requirements and limitations.
Maintained status is afforded to those with expiring work permits who have filed a timely inland application for a new work permit. However, this status simply allows applicants to continue working under the same conditions of their expiring work permit. In addition, the period of maintained status will end in the event the applicant departs and re-enters Canada following the expiry of their work permit. Although they may be granted re-entry to await the adjudication of their pending work permit extension application, they will have lost the authorization to work in the interim.
Conversely, those applicants that benefit from R186(w) are not bound by the limitations of their expired status, nor does an absence from Canada have any impact on their interim work authorization. Instead, they are simply allowed to engage in full-time employment until a decision is made on their pending work permit application, and may freely depart and re-enter Canada without consequence. Those who choose to travel, however, should ensure that they continue to comply with any legal requirements governing their entry to Canada. This may include requirements related to passport validity, or the need for a currently valid temporary resident visa or electronic travel authorization.
What do I need to know as an employer?
Throughout this series, we have emphasized the importance of every employer taking the measures necessary to verify the work authorization held by the foreign nationals they choose to hire. It is worth acknowledging that verifying the work authorization provided by R186(w) may be challenging, given the interim nature of this authorization.
In order to verify whether an employer may safely hire, or continue to employ, a graduating international student, the employer should seek to examine the following:
- Have they successfully completed their study program, and are they able to provide our organization with evidence of this completion?
- Do they qualify for a new work permit, and are they able to demonstrate this eligibility?
- Have they provided evidence that their work permit application has been filed, and if so, was their study permit still valid on the date of filing?
- During the period of their studies, were they authorized to work off-campus (under R186(v))?
An employer who is able to answer the above questions (with reference to confirming documentation where appropriate) engages in the due diligence necessary to ensure compliance with Canada’s immigration law. We strongly believe that this due diligence is therefore in the best interest of every organization that employs foreign nationals.
For more information, please contact Jonathan Mor and Heelan Kwon.
[1] R186(w).
[2] Part-time enrollment is permitted where the student has previously been registered full-time throughout their study program, and they are currently in the last semester of the study program and do not require a full course load to complete the program.
[3] Subsection 222 of the Immigration and Refugee Protection Regulations (SOR/2002-227).
