Education

Your Next Steps and Legal Options

Published on October 11, 2024

Who needs this information?

Anyone facing the possible end of their immigration road can benefit by understanding their legal options. If your work permit is about to expire, the landscape is really difficult right now. Politically, things are unstable, and people are struggling to get Invitations to Apply (ITAs) under Express Entry. Provincial Nominee Programs (PNPs) are filling up quickly, and it is becoming harder for foreign nationals to convince employers to go through the process of getting a Labour Market Impact Assessment (LMIA), especially with the tightening measures on low-wage LMIA applications. Our “Time’s Up” series is here to provide practical guidance to temporary residents (visitors, workers, and international students) who risk losing their status in Canada. In our podcast and blog series, we outline options for staying legally or planning an exit strategy to preserve future opportunities.

Current landscape:

As of August 28, 2024, visitors (Foreign Nationals on a visitor visa or an electronic Travel Authorization (eTA)) can no longer apply for a work permit from inside Canada. IRCC ended their temporary public policy without warning.

There are also a large number of work permit holders who face tough decisions in the next few months. Some estimate around 70,000 Post-graduation Work Permit (PGWP) holders will not get their PR before their work permits expire in 2024 and 2025. (see Footnotes below)

In addition to former international students with expiring PGWPs, there are other Temporary Foreign Workers (TFWs) and workers here under the International Mobility Program (IMP) whose work permits will expire. Depending on which category of work permit they hold, some people will need their employers to submit a new LMIA. Other IMP workers who are LMIA-exempt may need their Canadian employer to submit a new Offer of Employment through the Employer Portal.

Amidst this backdrop, on September 18, 2024, IRCC announced further plans to reduce the number of temporary residents in Canada. IRCC will be setting a National Levels Plan for Temporary Residents, in addition to Permanent Residents, and has already been taking measures to reduce the number of TRs (including visitors, students, and workers), from 6.5% of Canada’s total population down to 5% by 2026.

If you want to understand where the IRCC is going, it is useful to review the IRCC’s 2024-2025 Departmental Plan which provides data on Visitors, International Students, Temporary Workers, Immigrant and Refugee Selection and Integration, Citizenship and Passports, and Internal Services.

Based on the current Immigration Levels Plan for 2024-2026, there are only about 485,000 spots for Permanent Residents in 2024. The next Immigration Levels Plan will be announced on November 1, 2024, and we will be watching carefully to see what happens.

Express Entry has become out of reach for many because people need a Comprehensive Ranking Score (CRS) of over 500 points under a General draw or under a draw for the Canadian Experience Class (CEC). The Provinces only have a limited number of nomination allocations each year and those have largely filled up for 2024, but most Provinces do rolling draws or have Expression of Interest (EOI) systems which continue to consider applicants for 2025 and onwards.

In short, there are a limited number of PR spots and it is competitive. What are your options to either extend your stay temporarily or try to find a pathway to PR?

Understanding the Consequences of Becoming Out of Status

There are serious consequences to becoming illegal in Canada. The moment you become out of status, your options narrow significantly. You can’t apply for a new work permit from within Canada. If you’ve been working illegally or overstayed your permit, it’s far more likely that any future visa or permit applications will be refused. Even if your employer is willing to support you, if you’ve violated Canada’s immigration laws, you may have no way to stay.

When your work permit or study permit expires, your Social Insurance Number (SIN) also becomes invalid. That means you can’t legally work, and you won’t have access to benefits like healthcare. Your provincial healthcare coverage and driver’s license are often tied to the validity of your permit as well.

If you overstay your permit here, it can impact your ability to visit other countries. Canada shares immigration information with countries like the U.S., the U.K., Australia, and New Zealand. Many other countries also ask if you’ve complied with immigration laws in other jurisdictions. If you’ve violated your status in Canada, this could limit your ability to obtain visas elsewhere. That’s why it’s so important to avoid letting yourself fall out of status. Once you become illegal, you start losing options. We’ll cover more about restoration of status, temporary resident permits, and other options in this series, but for now, just know that it’s critical to maintain your legal status.

In our ongoing “Time’s Up” series, we will expand upon:

Detailed Options for Maintaining Legal Status in Canada

A. Extending Your Stay Temporarily:

Different category of work permit or extending your work permit: The principles in my blog, How Long Can I stay in Canada after my Work Permit expires still apply. Try to Secure a New LMIA-Supported Job Offer but there are challenges and steps involved, especially with the new ESDC changes implemented Sep 26, 2024. Listen to our Business Immigration Podcast Series, episodes 104, 105, and 109 on employer obligations for LMIAs. In the alternative, it may be possible to Apply for another Work Permit under the IMP or other LMIA-exempt work permits like Francophone Mobility or Temporary bridging permits (open and closed). Listen to our Business Immigration Podcast Series, episodes 100-102 and episode 114 to learn more about LMIA-exempt work permits.
Switch to a Visitor Visa
Restoration of Status: Restoration of status is available only within the first 90 days after your status expires. During this period, you must apply to restore your status to something valid, like visitor status but you must still prove temporary intent. You need to pay a restoration fee on top of the regular application fee. But there are limits. You can only restore your status if you haven’t committed certain violations. For example, if you’ve been working without authorization, that could make you ineligible. And if you miss the 90-day window, restoration is no longer an option. You’ll have to look at more complex options, like applying for a TRP.
Temporary Resident Permit (TRP): A last-resort option and what factors Immigration looks at. TRP is not the same as a regular visitor visa. A TRP is highly discretionary and only granted in exceptional circumstances. It’s essentially a permit to stay in Canada despite not meeting the regular requirements. Officers don’t issue these easily because they have to justify to the Canadian public why someone who’s technically in violation of immigration laws should be allowed to stay. The TRP itself doesn’t authorize you to work or study. It just allows you to stay in Canada legally. If your TRP is valid for longer than six months, you may be eligible to apply for a work permit, but that’s not automatic.

B. Pathways to Permanent Residence:

Economic (Express Entry, AIP, PNPs, Federal Business, Economic Pilots): By far, Economic PR gives the most predictability, the fastest processing times, and usually is the best option if you are eligible. A big part of our legal practice is guiding people through the Express Entry and PNP process.
Humanitarian & Compassionate (H&C) Applications: For unique, compassionate cases—what to consider. Humanitarian and Compassionate (H&C) applications fall under Section 25 of the Immigration and Refugee Protection Act. They’re intended for situations where there are exceptional or compelling circumstances that would cause undue hardship if you were required to leave Canada. These are serious applications and not something to be used as a last resort just because you want to stay in the country. For an H&C application to succeed, there must be strong and compelling reasons—often involving the best interests of children or significant ties to Canada. These applications are not just about showing that it would be inconvenient or difficult for you to return home. They need to highlight unique and personal circumstances that make your case stand out. One common factor in successful H&C applications is the presence of Canadian children and the impact on them if the applicant is removed. It could also include cases where someone is deeply integrated into Canadian society, has a strong work history, and has contributed positively to the community, but circumstances beyond their control prevent them from meeting regular immigration requirements.
Spousal Sponsorships – bona fides/marriage of convenience: Immigration law is clear: if any part of your motivation for getting married is to gain immigration status, it’s considered a “marriage of convenience.” Even if the relationship is genuine and you stay together for years, if the initial reason for marriage was to receive an immigration benefit, that could be grounds for refusal. Immigration officers will look closely at the timing of the relationship and the decision to get married. They’ll consider whether it seems like a sudden move just to prevent you from having to leave the country. If they determine that the marriage was for immigration purposes, you could be permanently barred from being sponsored as a member of the family class.
Refugee Claims: Risks and realities of applying for refugee status. A refugee claim is not something to enter into lightly. To be recognized as a refugee in Canada, you have to meet the definition under the Immigration and Refugee Protection Act. This means you must have a well-founded fear of persecution based on specific enumerated grounds, such as race, religion, nationality, political opinion, or membership in a particular social group. You must prove that your own government cannot protect you and that you have no safe place to go within your own country. It’s not enough to say that your country is unsafe because of crime or economic instability. You have to show that you, personally, are at risk and that you’re being targeted for a reason that fits within the refugee definition. You also must show that you did not delay in making your refugee claim and that you have a well-grounded fear. If you file a refugee claim without a legitimate basis, it can close the door to almost every other immigration option. If your refugee claim is refused, you’re not only barred from applying for most economic programs, but you also become subject to a removal order. This means you have to leave Canada, and if you don’t comply, you’ll face a deportation order, which can prevent you from returning to Canada or many other countries. Once you go down the refugee path, it’s hard to backtrack. And even while your refugee claim is in process, you lose access to other immigration programs. You can’t apply for Express Entry or most PNPs. You’re effectively stuck in limbo until your claim is resolved. If it’s refused, you could be left with no options at all. Refugee claims should only be used by people who genuinely fear for their lives and safety in their home country. There are serious consequences for filing a false or weak claim, and it’s not something you want to pursue unless you really have no other option.

When Going Home is the Best Option

Lastly, leaving voluntarily can be a strategic move. If you’ve only ever worked in Canada and don’t have any overseas experience, leaving for a year or two to build up additional work experience in your home country can actually increase your points under Express Entry. For the Canadian Experience Class (CEC), you only need one year of work experience in the past three years. So, there’s still time to go home, gain points, and come back stronger. Check out Mark’s video on Unlocking Permanent Residence in Canada: A surprising Strategy for Foreign Workers. Those who comply with immigration laws preserve their chances for future PR pathways or opportunities in other countries.