Implied status with the same worker

[ed-K]

I had been working for an employer as a semi-skileld worker for the last 1 year, and I was recently offered a skilled worker job by the SAME employer and have an approved LMO.

DO I have an implied status with my employer - that is, can I work with the employer under the previous work permit conditions (as a semi skilled worker) until the new work permit extension is approved?

Thank you

 

[computergeek]

I had been working for an employer as a semi-skileld worker for the last 1 year, and I was recently offered a skilled worker job by the SAME employer and have an approved LMO.

DO I have an implied status with my employer - that is, can I work with the employer under the previous work permit conditions (as a semi skilled worker) until the new work permit extension is approved?

Thank you

You have an interesting case, one I've not seen before. However, based upon the rationale for not giving priority to your work permit, it does seem you are covered by implied status. If your work permit does not bind you to the specific position, you could start working in the new position immediately. This is certainly a grey area.

But it seems clear to me that you have implied status:

TFWs who have applied to extend a WP with the same employer have implied status from the date the application is received at CPC-V and can continue to work at their existing place of employment as long as they remain in Canada.

Source: http://www.cic.gc.ca/english/resources/manuals/bulletins/2008/ob087.asp

The language here is tied to the employer, not the position. You will be in the "work permit for same employer" stream, so you are disadvantaged and the very rationale for this is because you have implied status. It would be unfair to penalize you and then tell you that you don't have implied status.

Good luck!

 

[ed-K]

Thank you for your response and the link - it was very helpful.

Ed-K

 

[SenoritaBella]

How about confirming with the CIC call centre? Below is what they sent me when I had requested information about implied status - Note the part in red - you are going from 'semi-skilled worker' to 'skilled worker' and eventhough it's the same employer that is a change in conditions of your previous permit so you must stop working until you receive the new permit, unless you receive written information from the call centre otherwise.

"Sir, Madam,

Thank you for contacting the Call Centre. I am pleased to provide you with the requested information:

As a temporary resident, if you send your application for an extension of your authorization to remain in Canada at the latest on the expiry date of your status, you will be considered in status as a temporary resident until a decision is made on the application. This is known as an Implied Status.

If you hold a work permit or a study permit, you can continue working or studying under the conditions of your previous permit if you have applied to extend your stay in Canada under the same category. However, if you have applied to extend your stay under another category, you must stop working or studying.

If you leave Canada while under implied status, you may be authorized to:

•re-enter Canada as a temporary resident, if the Case Processing Centre (CPC) in Vegreville, Alberta, has not yet made a decision on your application to extend your work/study permit. Please note that you will not be permitted to work/study until you receive your new permit. You must satisfy the officer at the port of entry that you have sufficient means of support. This applies if you:•are temporary resident visa (TRV) exempt;
•held a valid multiple-entry visa before leaving Canada; or
•travelled only to the United States and/or St.Pierre and Miquelon;

•re-enter Canada as a worker/student, if the officer at the port of entry determines that your application to extend your work/study permit was approved by the CPC while you were outside Canada;

or

· apply for a new work/study permit at the port of entry provided you have the right to do so under the Regulations.

For more information on implied status, please see OP 11, section 24 of the Operational Manuals.

The Internet links below will provide you with more detailed information:

Description: Overseas Processing - see OP 11, section 24
Address: http://www.cic.gc.ca/english/resources/manuals/op/index.asp

Description: Eligibility to apply for a Work Permit as you enter Canada
Address: http://www.cic.gc.ca/english/work/apply-who-eligible.asp#enter

Description: Eligibility to apply for a Study Permit as you enter Canada
Address: http://laws.justice.gc.ca/eng/SOR-2002-227/page-7.html#anchorbo-ga:l_12-gb:l_2. "

 

[computergeek]

And yet, FW 1 says:

R186(u) allows for persons to continue working under the conditions of an expired work permit, as long as they applied for a new work permit before the original work permit expired and have
remained in Canada. Once the decision has been made, the client will either have to leave Canada or will continue as a worker who holds a valid work permit.

And OP 11:

A temporary resident must apply to extend their period of authorized stay before it ends. If they have done so, their period of authorized stay as a temporary resident is extended by law until a decision is made [R183(5)]. Such a person is considered to have implied status as a temporary resident during that period.

If a temporary resident applies for renewal of their work or study permit and their permit expires before a decision is made, R186(u) and R189 (the right to continue working or studying under the same conditions pending a determination of their application for renewal) apply only as long as the person remains in Canada.

So I don't think the OP can start the new job, but can continue the existing job.

Note that even with respect to the quotation SenoritaBella offers up, the operative term is "category" - so you do not have implied status to keep working if you applied for student or visitor status. "skilled" versus "semi-skilled" are not categories of application, so the change of work conditions with your existing employer still leave you in the same category - temporary foreign worker.

If you can get through to the call centre and convince them to send you something in writing, that's great. Otherwise, I'd maintain you are safe - you can point to FW 1 and OP 10 and say "this is what it says, this is how I interpreted it, so I'm trying to stay within the law here, as per your own written manuals." MY best guess is that the question will never be raised - and if it were raised they'd be satisfied with this text. I admit I haven't read R186(u) and R189.

It took me a bit to find the operative rule here (R186(u)):

(u) until a decision is made on an application made by them under subsection 201(1), if they have remained in Canada after the expiry of their work permit and they have continued to comply with the conditions set out on the expired work permit, other than the expiry date.

source: http://laws-lois.justice.gc.ca/eng/regulations/SOR-2002-227/page-68.html#h-88

Note that R189 applies to study permits, so it's not applicable in your case.

The reference to 201(1):

Application for renewal

201. (1) A foreign national may apply for the renewal of their work permit if

(a) the application is made before their work permit expires; and

(b) they have complied with all conditions imposed on their entry into Canada.
Marginal note:Renewal

(2) An officer shall renew the foreign national’s work permit if, following an examination, it is established that the foreign national continues to meet the requirements of section 200.

That is the regulatory basis of implied status.

 

[Andreacanada]

computergeek ??