Implied Status in Canada | Understanding PGWP, Work Permits & PR

Implied Status in Canada: Implied status is an immigration concept whereby temporary residents, in certain situations, who make a new immigration application can continue to hold legal status in Canada until a decision is made on their new application, even if their current permit expires during processing.  Implied status is provided in specific circumstances only, and those who make a mistake with this end up illegally in Canada and subject to various penalties. IRCC has recently changed the term Implied Status to Maintained Status.

I recently met with a lovely European couple who wanted my help preparing their application for Permanent Residence
, as they had just received an invitation to apply under Express Entry.   Shortly into our conversation, we were all horrified to discover that they were actually in Canada illegally at the time.  Instead of a thorough discussion of the ins and outs of an Express Entry application, we ended up discussing how they needed to stop working immediately and make plans to leave the country as soon as possible.  It was not a fun discussion to hold, as they had set up house, had good jobs, a decent car and were actively planning to stay in Canada forever.

These were well read, organized and intelligent folks who had done a lot of research online and thought they had taken care of their situation properly.  The problem – their work permits expired and they assumed that because they were in the Express Entry pool, they had maintained status.  They had discussed the situation with their workplaces, and even called Alberta Health Care for an extension of coverage – which was granted in error.  They were certain that everything was just fine, until that fateful hour in my office when their world came crashing down around them.

Misconceptions about implied status are prevalent, and mistakes are incredibly costly.  Let’s dig into the important details so that you don’t find yourself in a similarly devastating situation.

Implied status, or maintained status, is an immigration concept enacted when an individual with temporary status in Canada makes a new application to extend their legal status.  If you make a new application before your existing status expires, you are considered to have maintained status until a decision is made on your new application.  Maintained status means that you can continue to legally remain in Canada, even if you have an expired work permit or expired study permit.

• Applying for Restoration of Temporary Status
• Applying for Permanent Residence in any category
• Submitting an Express Entry Profile
• Submitting an application for Provincial Nomination
• Applying for a new study permit or work permit through an overseas visa post

• A student in Canada applying for an extension of their study permit – can continue studying
• A student in Canada applying for a post-graduate work permit – can start working
• A student in Canada who applies to change to a worker because they have an LMIA – needs to stop studying when the study permit expires and cannot work until the work permit is issued, but continues to have legal temporary status to remain in Canada

• A worker in Canada who applies for an extension to their work permit because of their passport validity – can continue working
• A worker in Canada who applies for a new LMIA based work permit – can continue working
• A worker in Canada who applies for an open work permit attached to their spouse or common law partnership sponsorship application – can continue working
• A worker in Canada who applies for a study permit – needs to stop working when the work permit expires, and wait to start studying until the study permit is issued, but continues to have legal temporary status to remain in Canada

• A visitor in Canada who applies to extend their stay as a visitor – has implied status to remain inside Canada
• A visitor in Canada who is eligible for, and applies for an inland open work permit – has implied status to remain inside Canada
• A visitor in Canada who applies for an LMIA based work permit – does not have implied status and needs to also extend their stay as a visitor in Canada
• A visitor in Canada who applies for a study permit – does not have implied status and needs to also extend their stay as a visitor in Canada

It’s important to note that applying for Permanent Residence in itself does not provide you with any kind of implied status.  If you are already in Canada with valid status (worker, student, visitor) at the time you apply for PR, then you may be eligible to also make a new temporary application in conjunction with your Permanent Residence application.  If you make a new temporary status application before your current temporary status expires, then you would achieve implied status to remain legally in Canada.

I’ll say it again because it’s confusing to many.  Applying for PR does not give you valid temporary status, or implied status
.  You still need to make a new temporary status application before your current permit expires in order to retain legal status in Canada.

Below are some examples of work permit applications that are made in conjunction with applications for Permanent Residence.  Note that you only have implied status if your new application is made before your current permit expires.

• Bridging Open Work Permit Implied Status – if you have a valid work permit at the time you apply for a Bridging Open Work permit, you will have implied status.
• Spousal Sponsorship Implied Status – if you have a valid work permit at the time you apply for a spouse or common-law sponsorship, and if you include an application for an open work permit in your sponsorship application package, you will have implied status

If you submit a new application for temporary status before your current permit expires, but that application is returned to you as incomplete after your current permit has already expired, you lose implied status as of the date your application is returned.  You will need to apply for restoration of your status and stop studying or working until a new permit is issued to you.

It’s important to remember that implied status is only granted for temporary applications that will be processed inside Canada.  It’s a bit confusing, because it is also possible to be inside Canada and apply for a new temporary status that will be processed through an overseas visa post – and those applications do not provide implied status.

In terms of online applications, if you are completing an application for Temporary Residence that falls under the “Stay in Canada Longer – Change conditions or extend your stay” category then you will gain implied temporary status from the time that your current status expires until the time that you receive a decision on your new application.

If you are completing an application for Temporary Residence that falls under the “Come to Canada Temporarily – Visit, Study or Work in Canada”, then you will not gain implied temporary status because these applications are processed at a visa office that is outside of Canada.

Leaving Canada is not recommended when you have implied status. In most cases, if you leave Canada while you have implied status, and return before your new permit has been issued, then you will lose the right to work or study while waiting.  Going to the land border to flagpole while under implied status can also cause a lot of problems, particularly if you don’t know what documents to compile in order to prove that you do indeed have valid status in Canada.  You can quickly find yourself in trouble with immigration officers because they assume that you have overstayed inside Canada. When maintained status is important to the situation (for continued work or continued study), it’s strongly recommended that the applicant remains in Canada.

No document is issued in order to prove implied status – it is an automatically imposed condition. Therefore, your own recordkeeping is paramount to ensure that you don’t get accused of being illegally in Canada.

Proof of temporary resident status maintained as per R183(5) should include the following documents:

• copy of the Acknowledgement of Receipt (AOR) letter with your file number for your new application as a worker, student or visitor
• copy of the fee payment receipt
• copy of your original permit, now expired

Update
: Starting in October 2020, IRCC began issuing a letter to those who applied inland for a new work permit using the online portal.  This letter is intended to be used as proof of implied status.

It remains to be seen if this proof of implied status letter will be a permanent feature of the online process, or if this is just a temporary measure due to increased processing time during the COVID pandemic.

Each of the Provinces handles implied status differently, with the two major concerns being health care coverage and driving privileges.  In Alberta
, if you call Alberta Health Care
before your current permit expires and advise them that you have applied for a new permit and have implied status,  you will receive a 90-day extension to your Alberta Health Care coverage.  However, driver’s licenses in Alberta are not renewed on the basis of implied status.  If your driver’s license will expire in conjunction with your immigration permit, then you will not be able to get a new driver’s license until your new immigration permit has been issued.  It’s strongly recommended that you plan ahead on these matters when considering the timing of your immigration applications.

Employment insurance is a complicated topic in its own right, and we often hear from clients asking “Can I claim EI on implied status?”  The short answer is yes, it is possible to receive EI benefits during implied status.  However, there are many other factors outside of immigration status that play into whether or not you are eligible for EI – so our best advice is to contact Service Canada to discuss your situation.

The time that you spend working in Canada with implied status is eligible to be considered under the Canadian Experience Class and is also eligible as Canadian Work Experience for your CRS points calculation in Express Entry.  You will need to provide proof that you had implied status with any application for Permanent Residence that includes time spent in Canada without an actual permit.

There is a significant amount of discussion online about working holiday visa holders and implied status, and unfortunately much of the online information is incorrect.   If you hold an IEC work permit
(Working Holiday, International Co-op or Young Professionals), you CAN benefit from implied status in certain situations if your application is handled correctly.  These are the most common scenarios:

A) Your Working Holiday Permit is set to expire and you have a new IEC Permit (working holiday, Int’l Co-op or Young Professional) in process – you do not have implied status.  Your options are:

1. Leave Canada when your working holiday permit expires and return when the new permit is approved.
2. Apply for an extension as a visitor before your working holiday permit expires, stop working when the work permit expires and flagpole when the new IEC permit is approved.

B) Your Working Holiday Permit is set to expire and you have applied for Permanent Residence as the spouse or common law partner of a Canadian and included an application for an open work permit with your PR application – you do have implied status if your application for PR is accepted as complete.

It’s apparent from this very basic discussion of maintained status that it is a complicated topic.  Making a mistake on this issue can drastically affect your future plans for life in Canada – so you need to get it right!  The best option is always to consult with a professional to be certain that you understand your own situation correctly.  At The Way Immigration, we deal with maintained status on a daily basis and we would be happy to help you understand where you fit within this complicated picture.  Together we can ensure that your future in Canada is as happy and secure as you are planning it to be!