Waiting for work permit the better way – by Guidy Mamann

January 9th, 2006

Starting a new job should be fun and exciting. But for some foreign nationals in Canada anxiety and frustration can easily creep into the process.

Once a job offer has been made, the prospective employer and employee are often eager to get started and may be tempted to jump the gun before the work permit is issued. Often, it is agreed that the employee will begin an “orientation” or “training” until the work permit arrives. Sometimes, this is characterized as “volunteer” or “unpaid” work.

In the course of processing a work permit, it is not uncommon for an immigration officer to contact the proposed place of employment to pursue a hunch that the employee may already be working there. If this suspicion is confirmed, the officer is required to apply immigration regulation 200 (3) (e) which prohibits the issuance of a work permit to any foreign national who “has engaged in unauthorized study or work in Canada or has failed to comply with a condition of a previous permit or authorization unless a period of six months has elapsed since the cessation of the unauthorized” activity.

This six-month ban does not apply to a foreign national who was authorized to work, but who was performing tasks that were not authorized or who was working for an employer, or at a location, not specified in the work permit. There is also an exception for applicants who are under an unenforceable removal order or who are making a refugee claim that has not been determined.

The only way to overcome the ban before the end of the six-month period is through the unlikely issuance of a Temporary Resident Permit (TRP). The most likely outcome will be the refusal of the work permit and/or TRP application followed by a request that the foreign national leave the country immediately or within a specified period (usually 30 days).

Unauthorized employment puts everyone in an uncomfortable position. The employee, who succumbs to financial or other pressures, could see long term plans for resettlement here scuttled. The employer risks losing a valuable addition to its work force and risks putting other employees in an uncomfortable position if confronted by a surprise call or visit by immigration authorities. There is also the risk, albeit small, of the prosecution of the Canadian employer for employing a foreign national who is not authorized to work.

Even the immigration lawyer who is preparing the application for the work permit is put in a difficult situation if he becomes aware of the unauthorized employment. Failure to disclose the unauthorized employment may put the lawyer in peril of prosecution for aiding an applicant to “withhold material facts” in connection with a work permit application. On the other hand, disclosure of the unauthorized employment will only trigger a refusal of the application and the likely termination of his client’s status in Canada.

In short, it is best for all those involved to be patient while the work permit is being processed. When it comes to immigration, patience is not only a virtue but is an absolute necessity.