During the past six months, we have been handling an increasing number of calls and messages from foreign nationals in Canada whose employment has been terminated by their Canadian employer and who wish to consult us on what their immigration options are.
Can they look for employment with another employer? Can they accept a job offer that has been made to them? Can they remain in Canada? Or do they have to leave the country?
The short answer to the question is – it depends.
Depends on what?
It depends on what the individual’s particular fact situation is, and what their status in Canada is.
To get a better handle on this, let’s look into what it all means.
STATUS IN CANADA
A foreign national who is legally in Canada is either a “permanent resident” or a “temporary resident”.
A permanent resident is someone who has acquired permanent residence status in Canada under one of the various government programs designed to confer permanent resident status on that person. For example, a person may become a permanent resident under one of the Express Entry permanent residence programs.
Persons who are not permanent residents are temporary residents and have temporary residence status in Canada. Temporary residents are typically visitors, students and foreign workers. Temporary residents are normally admitted to Canada for specific periods of time. For example, a visitor may be admitted for up to six months. Foreign workers are normally admitted for the duration of their period of authorized stay in Canada.
WHAT HAPPENS IF A FOREIGN WORKER’S EMPLOYMENT ON A WORK PERMIT IS TERMINATED?
The rule here is set out in Section 209 of the Immigration and Refugee Protection Regulations which states as follows: “A work permit becomes invalid when it expires or when a removal order that is made against the permit holder becomes enforceable.”
In other words, the work permit remains valid after the termination of the permit holder’s employment until either the work permit expires, or a valid and enforceable removal order is made against the permit holder.
As a result of this, the permit holder can remain in Canada in valid temporary residence status for the remining duration of the work permit, or until a removal order is made.
CAN THE FOREIGN WORKER TAKE UP EMPLOYMENT WITH A DIFFERENT EMPLOYER?
If the permit holder’s work permit is an open work permit (e.g., a spousal open work permit, a post-graduate work permit or a bridging open work permit) the permit holder is free to accept employment with another employer.
If the permit holder’s work permit is a “closed” or employer-specific work permit (i.e. a work permit which names a specific employer)the permit holder and the prospective new employer will have to take steps to obtain a new work permit for the permit holder. This may be a complex process. For example, it may require the permit holder to leave Canada and to apply for a new work permit from outside of Canada. Likewise, it may require the new employer to apply for and obtain a Labour Market Impact Assessment (LMIA) to support the employment of the foreign worker.
For more information about obtaining a work permit, or renewing of extending a work permit, contact us at info@kreindlerlaw.com
