Newest IRCC Public Policy Eliminates Open Work Permit for Spouses of Students Who Are Ineligible for PGWP

As a spouse or common –law partner of a study permit holder in Canada, you can apply for an open work permit to be able to join your partner in Canada if you are eligible.

IRCC has released a public policy update (essentially a rule change) regarding who is now eligible for the spousal open work permit, and eliminating the option of the OWP for spouses of students who are studying at institutions which do not offer courses eligible for post-graduation work permits.

Principal Foreign National

The new public policy has introduced the new concept of the Principal Foreign National (PFN). This refers to the person/foreign national who first applied for temporary status in Canada – in this case, the student.

Principal Foreign Nationals retain this status indefinitely throughout any applications for temporary status such as subsequent study permits or work permits. The PFN will NOT be permitted to change status from a student to that of a worker on the basis of their spouse’s open work permit if the spouse happens to be working in a NOC 0, A or B occupation.

This loophole previously allowed spouses and common-law partners to “flip-flop” between who was the principal status holder (the student or the worker in a NOC 0, A, or B job), and then become the spousal open work permit holder themselves as their own spouse either went to school or began working in an eligible job. This was done in order to continue remaining in Canada as a temporary resident and gaining eligible work experience for a PR application, and will no longer be possible.

NOTE: the Principal Applicant on a PR application is not required to be the same person who was the Principal Foreign National on previous temporary residence applications.

Spousal Open Work Permit Eligibility

Eligibility for a spousal open work permit was previously based on being the spouse or common-law partner of a student who held a valid study permit in Canada only. Now, eligibility is based on being the spouse or common-law partner of a PFN holding a study permit and studying at a Post Graduate Work Permit eligible institution.

Just as an international student cannot be issued a study permit to attend a school which is not on the Designated Learning Institutions list, their spouse can now no longer be issued a work permit if the student who is the Principal Foreign National does not attend a school which is eligible for graduates to receive the post-graduation work permit. NOTE: not all schools who are on the DLI list are eligible for students to apply for a PGWP.

A list of these institutions can be found on the IRCC website ‘designated learning institutions’ page.

In order for their spouse to be eligible for the spousal OWP, the Principal Foreign National (student) must now provide:

• evidence that the principal foreign national is attending a designated learning institution
• evidence that the principal foreign national is actively engaged in full-time studies in a post-graduation work permit- eligible study program and institution, such as
• a Canadian public post-secondary institution, such as a
  • college
  • trade or technical school
  • university
  • CEGEP in Quebec
• a private post-secondary institution in Quebec that operates under the same rules and regulations as a public post-secondary institution in Quebec
• a private or public secondary or post-secondary institution in Quebec offering qualifying programs of 900 hours or longer leading to a diploma of vocational studies (DVS) or an attestation of vocational specialization (AVS)
• a Canadian private institution authorized by provincial statute to confer degrees (for example, a bachelor’s degree, master’s degree, or doctorate), but only if the study permit holder is enrolled in a study program leading to a degree as authorized by the province, which may not include all study programs offered by the private institution.

Evidence of a Genuine Relationship Required for Spousal OWP

While obtaining the spousal open work permit has historically been easy for many applicants, students from certain parts of the world know that they have to go the extra mile and actually prove that the relationship they have with their spouse or common-law partner is actually genuine and is not a marriage of convenience simply to be able to come to Canada. For these students, a marriage certificate or statutory declaration of common-law union was NEVER enough to get a spousal open work permit approved.

Our office has extensive experience in this area, so for our clients, spousal open work permit applications are prepared in the same way as a mini-sponsorship application to prove that the relationship is genuine. However, this is now going to be the requirement for all applicants for a spousal open work permit application as the spouse or common-law partner of a student or eligible work permit holder.

Evidence of Common-Law Relationship

Just as with a sponsorship application for PR, eligible common-law partners may come to Canada with their partner who is the PFN as a student or worker. But, just as with sponsorship applications, the applicants also need to prove NOT ONLY that their relationship is genuine (see above), but that they also meet the legal threshold for common-law status. It is not enough to simply fill out the statutory declaration of common-law union and include it with the application. Applicants need to show that they have historical evidence of having lived together for a period of at least 1 year (365 days).

Again, a statutory declaration (IMM5409) with a lease agreement and a utility bill is and has always been insufficient to prove common-law status, and will almost certainly result in the application getting refused. More information on meeting the threshold for common-law status for immigration applications is available here.

The changes brought about by this new public policy will have a huge impact on how future students decide on where they wish to study if they have a spouse or common-law partner. It may even affect whether Canada will be the first choice for some applicants.