A lot of laypersons may be surprised to find out that some work visas are not based on law but on policy. Policy is the least strong in the hierarchy of Law/Regulations/policy. Some work permits based on policy include Post-graduate work permits, Ontario’s Provincial Nominee Program masters/Phd students , and spouses of study permit holders (not to mention the defunct Family Business Job Offer category).
Policies are based on guidelines put out by the immigration department for the benefit of immigration officers. They don’t have the force of law or regulations. The Federal Court rarely opines on the meaning of a policy. If you’re applying for one of the work visas above, you want to ensure that you know exactly what the policy requires and make sure you comply with those requirements.
It is a huge disappointment for a study permit holder, having spent a significant amount of funds on tuition and living expenses be faced with a refusal based on not fitting the policy. If you have an unusual situation that may not clearly fit the policy, you should realize that you only have one shot at some of these work visas and once refused, the opportunity to re-apply is severely limited if not impossible.
For example, if you failed courses while studying, or suffered an academic suspension, it may not be clear if you are eligible for a post graduate work permit. The policy is below:
The student must have studied full-time at a Canadian university, community college, CEGEP, publicly funded trade/technical school, or at a private institution authorized by provincial/territorial statute to confer degrees (but only if the applicant received the credential in a program of study leading to a degree as authorized by the province and not in all programs of study offered by the private institution).
- •Studies must have taken place at a Canadian institution in Canada. Distance learning from outside or inside Canada does not qualify a student for this program.
- •The student must have completed and passed a full-time course of study or program lasting at least eight months. Whether they received a “degree”, “diploma” or “certificate” is not an issue.
- •The work permit application should include evidence that the student has completed the program or course of study. This may include a final transcript, letter from the institution or the formal notification of graduation.
- •The application must be submitted within 90 days of formal written notification by the institution that they have met the requirements of the course of study or program. Students who have evidence of program completion may apply for the work permit before the formal notification. Calculation of the 90 days begins the day when the student’s final marks are issued or when formal written notification of program completion is received, whichever comes first.
- •The student must still be in possession of a valid study permit at the time of application.
Specific eligibility criteria
- •If the program of study is two years or more, the student would be eligible for a three yearwork permit.
- •If the program of study is less than two years but at least eight months, the student would be eligible for a work permit lasting for a period equal to the duration of their studies. The validity period of the work permit must not be longer than this period. For example, if the student graduated from an eight-month certificate program, they are only eligible for a work permit of eight months’ duration.
Exception: Students holding a one-year graduate degree from a provincially accredited post-secondary educational institution in Canada (pursued full-time) after having obtained, within the prior two years, a degree or diploma from an accredited post-secondary educational/training institution will qualify for a three year work permit. This exception also applies to students who have left Canada temporarily between the graduations.
Its best to have a competent lawyer review your situation and determine if you aren’t sure about whether you are eligible for a work permit.
