Working While On Restoration Status

[Regdor]

Hi! A friend is working while on restoration period (work permit was applied after expiry of old one). He gets paid. Taxes are being deducted. Would there be any problem with that? Would the CIC or CRA know about that from the taxes he's paying? I'm honestly worried about him, he knows only a bit about immigration laws and I am trying to explain it to him but not so sure of info myself.

Also, if the decision is denied and it surpassed the 90 day grace period, is he entitled for another restoration upon receipt of letter or he has to leave Canada? Can he apply to change status to visitor when the 90 day grace period is over?

Thanks for anyone's reply.

 

[computergeek]

Your friend is working illegally.

Once his work permit expired, without a renewal filed, he MUST stop working - otherwise he is working illegally and is in violation of the IRPA.

If he is denied, he will receive a departure order. He will have 30 days to depart Canada. If he does not leave within that time frame the departure order becomes a deportation order and he is banned from returning to Canada in his lifetime without written permission (known as an Authorization to Return to Canada or "ARC").

CRA does not report information to CIC or CBSA as a normal course. If someone reports him and/or his employer they will both be subject to sanctions.

 

[Regdor]

Thank you computergeek. I appreciate your reply. But when he is approved for restoration, his work under restoration would just be okay as the CIC would never know of it without someone reporting it? Would it affect his future status like that for PR if non-reported? Honestly, I want him to get over through this, he's a good guy who just doesn't know of current immigration procedures, and his company either.

 

[computergeek]

Well, he's violating the law. But like any legal violation - speeding, parking, etc. if he doesn't get caught it won't be held against him. The problem is that if he DOES get caught he will be subject to a removal order.

If your status has expired or if you did not respect one of the conditions of your permit or you have worked or studied without a required permit, you have committed an offence under the Immigration and Refugee Protection Act. You may be subject to an admissibility hearing that could lead to removal from Canada. If your temporary resident status has expired, do not apply for an extension as you are not eligible. However, if you wish to stay in Canada after your status has expired you may apply for restoration of status within 90 days of your offence (loss of status) or you must leave Canada. If you wish to apply for restoration, complete the enclosed application providing full details of how you came to commit the offence. There is no guarantee that your application will be accepted. See the section Restoration of Status.

Source: http://www.cic.gc.ca/english/information/applications/guides/5551ETOC.asp

Ignorance of the law is not a valid defence.

You may seek restoration within 90 days after your status as a visitor, student or worker has been lost, if you have only failed to comply with one or more of the following conditions:

You lost status because you remained in Canada longer than the period authorized for your stay (but not longer than 90 days).
You changed employers, type of work, or location of work without applying to change these conditions if they were specified on your work permit.
You changed the type of studies, educational institution, location of studies, or times and periods of studies without applying to change these conditions on your study permit if they were specified on your study permit.
You continue to meet the initial requirements for your stay and have not failed to comply with any other conditions imposed.

You have committed an offence under the Immigration and Refugee Protection Act if you have not abided by the conditions that were imposed when your entry was authorized or when your work or study permit was issued. You may voluntarily leave Canada or you may be subject to an admissibility hearing that could lead to removal from Canada. Your temporary resident status in Canada will have been lost, and (if applicable) your student and/or work permit will have ceased to be valid.

You may wish to complete an application to apply for restoration of temporary resident status and for a new work permit. There is no guarantee that your application will be accepted. On your application you must provide full details of all the facts and circumstances that resulted in you committing the offence.

If you apply for a work permit, you must pay the permit fee as well as the restoration fee when applying. Restoration applies to each member who has lost his or her status.

An officer will evaluate your request for restoration of status and if approved will process your application for a work permit. You will then be advised of any further action to be taken.

Source: http://www.cic.gc.ca/english/information/applications/guides/5551ETOC.asp#restoration

Information from CBSA on removal orders: http://www.cbsa-asfc.gc.ca/media/facts-faits/051-eng.html

I hope your friend is successful in obtaining restoration.

 

[Regdor]

Thanks again computergeek. I will read the link you sent and I will find time to talk to him about this.I'm sure he doesn't want to jeopardize his status, he's only here for 1 year. But he's working on his 2nd month of restoration already because of long work permit processing. He violated already even if he stops and realizes it now? Argggghhh,sorry I'm confused about his situation.Thank you

 

[SenoritaBella]

He already violated the rules but doing what's right going forward will serve him better than continuing to work illegally and getting caught. He should stop working immediately. This rarely happens, but what if the visa office calls the employer to verify something and learns that he is still currently employed? The employer like many others may just get a fine while your friend will be facing a removal order and may be fired for not being forthcoming about the expiration of his work permit.

 

[Regdor]

Thanks Senoritabella for your comments. Yeah,I think he must cease working. I haven't talked to him in 2 weeks I guess. will call him later and tell him to read this forum thread.Also, the restoration he applied for does not have the LMO yet,it is still on process by SC.His employer's consultant attached only the proof of lmo application.Is it allowed to submit restoration without the actual lmo yet? or it is only allowed for those whose work permits are expiring within 2 weeks wherein the application will be held by CIC for 2 mos.?By the way, his employer's consultant is telling him that he could still work because he is on deemed or implied status. his work permit extension was submitted a day after the expiry of the old one, because the expiry date happened to be a holiday. He is being misled by the consultant, right?Because afterall, the extension was still filed after the expiry and I don't think CIC could bend rules on that just because the expiry falls on a holiday and there was no courier service (there's online application, afterall).Thanks again for all your inputs.

 

[computergeek]

his work permit extension was submitted a day after the expiry of the old one, because the expiry date happened to be a holiday.

My understanding is that the work permit extension must be RECEIVED by the expiration date.

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.

See also OP 11, section 24.

Source: FW 1 "Temporary Foreign Worker Guidelines"

Now with that said, had he sent it on Friday and the expiration was Sunday and they received it on Tuesday (with Monday being a holiday) THEN I could see someone making a plausible argument for implied status in that case. But if he didn't SEND it until Tuesday, then I would say he didn't apply prior to the expiration under any reasonable interpretation of the rule.

Assuming the consultant is a certified immigration consultant, a written opinion to the effect that his application was timely is probably enough to get him out of any truly serious trouble - if it were a lawyer saying that, it would be stronger, because one has an expectation that an attorney will know the law and fairly represent it to you as a client. I'd say he is in a definite grey area here, though, and I would be uncomfortable in his position.

 

[Regdor]

Hi computergeek! From what I know, the consultant sent it on a Tuesday, and the work permit expired on a Monday.The consultant even argued and justified to him that the application was not sent on a Friday (not sure of certain dates), because it will not be received by the CIC on Monday (work permit expiry date) either because no courier service, thus it was sent on Tuesday.The last time I heard of him, he said the consultant just told him to patiently wait for his permit, so my friend has been doing the consultant`s advice which I strongly oppose.I don`t want him to be put in a bad light.I feel that the consultant just covers its lapses in the application. The consultant could have sent it on Friday just to be sure and safe

 

[SenoritaBella]

Exactly! Had he mailed it on Friday, it will have the post office's date stamp on it even if it got there on Tuesday or Wednesday. He could have applied online or submitted the application at least 30 days prior, which is recommended. Anyway, what's important now is that he stop working.

If you need a LMO, it's better for your employer to apply for it about 3 - 4 months before your work permit expires. This way you don't feel rushed and may receive the file number or the LMO itself before you apply for renewal.

I recall two instances when I applied for renewal 3 to 4 months ahead of time and still ended up being in implied status for a few weeks. For this reason, I have never understood people who wait until a few days to apply.

Hi computergeek! From what I know, the consultant sent it on a Tuesday, and the work permit expired on a Monday.The consultant even argued and justified to him that the application was not sent on a Friday (not sure of certain dates), because it will not be received by the CIC on Monday (work permit expiry date) either because no courier service, thus it was sent on Tuesday.The last time I heard of him, he said the consultant just told him to patiently wait for his permit, so my friend has been doing the consultant`s advice which I strongly oppose.I don`t want him to be put in a bad light.I feel that the consultant just covers its lapses in the application. The consultant could have sent it on Friday just to be sure and safe