A client who graduated one year ago came to our office to seek for advice. He applied for his post-graduation work permit in June 2016 and it is completing 1 year of CEC. However, he has been working full time for the employer since November 2015, while he was still a student. Therefore he failed to comply with all conditions of his study permit and worked in excess.
- How does his non-compliance while a student affect his application?
- Is it reasonable to ask him to leave Canada, stay 6 months out and then apply?
- Is there any suggestion to overcome this and avoid a refusal of his Express Entry?
You are correct that he violated the conditions of his study permit by working excess hours over what was permitted. As we know, a student at a post-secondary institution is permitted to work only 20 hours per week while school is in session, and full time hours only during scheduled breaks. Since he violated this condition, it means he fell under s.41 of IRPA which states as follows:
Generally, inadmissibility for non-compliance will end as soon as the person is no longer in a state of non-compliance or leaves Canada. This does not prevent an officer from writing an A44(1) report covering a person who:
- is still or otherwise remains in Canada; and
- during the period of that person's current authorized stay or presence in Canada, violates (or violated) a condition or requirement of the Act.
For example, in the case of a person who performed an unauthorized work activity but who now claims to no longer be in a state of non-compliance because the work activity has ceased, these persons are and will remain reportable for non-compliance for the duration of their current stay in Canada because, during the period of their current stay in Canada, they violated a condition or other requirement of the Act; namely, they were not in possession of a work permit nor were they authorized to work.
This suggests that if the person stopped his/her non-compliance and left Canada, s.41 no longer applies to them. I would wonder in this particular case if the person left Canada and re-entered at any time after the previous period of unauthorized work. Even if not, by leaving Canada now and applying from abroad, it would cure the prior non-compliance.
That said, my concern about a finding of non-compliance in this case takes a distant back seat to the possible issue of misrepresentation. The facts disclose that this client applied for and received a post-graduate work permit after completing their studies. In the work permit application, the client would have had to answer the question of whether (s)he ever worked or studied illegally in Canada in the past. I would put money on it that this client answered "no" to that question, because otherwise they would have had a 6 month ban on getting a work permit. Remember that R200(3)(e)(i) states as follows:
(3) An officer shall not issue a work permit to a foreign national if
(e) the foreign national has engaged in unauthorized study or work in Canada or has failed to comply with a condition of a previous permit or authorization unless
- (i) a period of six months has elapsed since the cessation of the unauthorized work or study or failure to comply with a condition,
If this is the case, you might have a much more serious problem on your hands, because the client is guilty of more than non-compliance - (s)he has compounded it with misrepresentation on the work permit which is currently held. It would be a good idea to canvass this with the client to see if it's indeed the case. Disclosing the full history on a future application for permanent residence would potentially bring to light both the non-compliance and the misrepresentation, and the client would be taking risks of which they'd need to be fully informed before proceeding. Arguably the misrepresentation is ongoing as well, since the work permit on which the misrepresentation was made is still being used and the client is still inside Canada.
An application for a visa abroad, or for entry into Canada at a port of entry may be denied based on a misrepresentation made in connection with the current application or examination only, unless the person was previously the subject of a refusal for misrepresentation and the resulting two-year inadmissibility period has not elapsed.
As a final word on this issue, it is also important to keep in mind that according to the CEC and Express Entry Regulations, the client cannot rely on any work experience that was gained while working as a student, so be careful not to improperly claim credit for that experience. See http://www.cic.gc.ca/english/immigrate/cec/apply-who.asp