Typically, when a Canadian employer wishes to hire a foreign national, either inside or outside Canada, they must apply for a Labour Market Impact Assessment. An LMIA is an application made to Service Canada that demonstrates labour shortages cannot be filled locally thus requiring the Canadian employer to hire a foreign national.
However, under very specific circumstances, a foreign national may obtain an Open Work Permit based on an LMIA exemption code. These codes were designed to help facilitate the issuance of work permits without an LMIA and in accordance with Sections 204 to 208 of the Immigration and Refugee Protection Regulations (IRPR). One of these exemptions codes is:
“Spouses or common-law partners of certain foreign nationals who hold a study permit and study on a full-time basis in post-graduation work permit-eligible study programs and institutions may apply for an open work permit under the LMIA exemption category C42, as work designated by the Minister.
This LMIA exemption category is intended for spouses who are not, themselves, already study permit holders actively engaged in full-time studies. The reasons for allowing spouses to enter Canada and work is to increase the competitiveness of Canada’s academic institutions or economy in post-graduation work permit-eligible study programs and institutions.”
Simply being a full-time student does not grant automatic eligibility for a spousal open work permit (SOWP) as there are several piece of documentary evidence you should consider submitting:
Evidence that they are the genuine spouse or common-law partner of a study permit holder
A document (could be a marriage certificate or declaration of common-law union) that indicates the relationship between the applicant for the work permit and the student is genuine. Note that conjugal relationships (in this context, when two people are not able to cohabitate or marry due to religious or cultural reasons, or penal control) is not listed under the eligibility criteria.
Evidence that the principal foreign national is attending a designated learning institution and is actively engaged in full-time studies in a post-graduation work permit- eligible study program and institution
Under the C42 exemption, the student must be studying at a DLI that is ALSO PGWP eligible.
Demonstrating the student is actively engaged in studying may include submitting the Letter of Acceptance from the DLI, most recent tuition receipt, report card or academic transcript. Some schools may also provide a Letter of Enrollment which confirms the student is actually attending classes. Fees may apply for the DLI to produce these documents for you.
When to Apply
The SOWP application can be made along with the study permit application OR can be made after the student has arrived in Canada and has started studying. There is not one correct answer as this mostly depends on specific circumstances and personal preference. For example, some students like to arrive first and get acquainted with the area and secure housing before having their families arrive. Others wish to enjoy the experience together upon arrival.
Common Reasons for Refusal
Unfortunately, even the most comprehensive and well documented application submissions may be refused. If you find yourself looking at a refusal letter, your first step should be obtaining the GCMS notes to see if any more reasons have been provided in the officer’s notes.
Some frequent ones we see are:
The officer is not convinced the relationship is genuineSadly, marriage fraud or ‘marriage of convenience’ is all too common and officers are astutely aware of this. If you’re newly married or come from an area of the world with high levels of fraud, you may wish to include further documentation of your relationship.
The officer is not convinced the spouse will return home after their visit to CanadaIf the study permit holder used their spouse as a ‘home tie’, it’s reasonable to assume the officer will question what will entice the applicant of the work permit to return home. Having strong ties like family, property, employment, and other assets should be included in the initial application if they apply.
The applicant has stronger ties in Canada than in their home countrySimilar to the above point, if the applicant of the work permit has another family member in Canada (for example, a brother who lives in another province) plus the spouse or partner studying in Canada, proving home ties is all the more important.
A SOWP is not only a work permit but an open work permit. Under the IRCC fee list, two fees must be paid: work permit ($155) PLUS the open work permit holder fee ($100). Be sure to include both in this application.
While a SOWP may seem easier because it’s often directly linked to a spouse or partner already studying or working in Canada, the application still requires all the appropriate documents and considerations. Be sure to read the instruction guide carefully to avoid having your application returned or refused.Related Articles: