Mark Holthe 0:05
This episode of the Canadian immigration podcast is sponsored by the Canadian immigration Institute, one of the best sources of video content on Canadian immigration to help you navigate your way through the Canadian immigration process. Head on over to the YouTube channel, where there's tons of video content, and you can join mark yes myself in a number of live video streams, Q and A's all designed to help you navigate your way through this crazy Canadian immigration process. When you're done there, like and subscribe and then head on over to the Canadian Immigration institute.com where you can find all those awesome DIY courses that I've been talking about. Thank you, Canadian immigration Institute. You are the sponsor of this amazing little podcast. You
Intro 1:07
the Canadian immigration process can be complex and frustrating with the Canadian Immigration Department making it virtually impossible to speak to an officer, there are few places to turn to for trusted information, the Canadian immigration podcast was created to fill this void by offering the latest on immigration law, policy and practice. Please welcome ex immigration officer and Canadian immigration lawyer Mark Holthe, as he is joined by industry leaders across Canada sharing insight to help you along your way.
Mark Holthe 1:56
Welcome back everyone to another episode of the Canadian immigration podcast. This is our time's up series. This is the second episode of this series. This one is all about the high cost of staying in Canada illegally. Now the last podcast episode, we talked about the generalities of of what's going on in Canada, the reality that many people are running out of status. They're wondering what to do when their work permit expires. And Alicia, we are in a whole new world, are we not? Yeah, it is a very competitive landscape. I can't emphasize how much it is important to be strategic, to understand what's going on with immigration. And things are really, really tightening up. There are not as many options for permanent residency, and the options for temporary residents are becoming fewer and fewer as well. Yeah. So what I want to do, at least in this episode, everyone, as you're tuning in, there's so much misinformation out there about, you know, what do we do when the work permit expires? And we're going to talk a lot about that in the various episodes that are to come. You know, we're going to talk practically speaking about the options that are available from from a practical standpoint. But today, this is all about kind of disabusing, all of the misinformation, all of the just the just the the bad direction, the bad instruction, the bad information that is being spread around about choosing to stay illegally in Canada. And so, you know, in the first, like I said in the first episode, we gave a quick little summary about, you know, the current challenges. And we know that many, many people are in this type of a situation. But in this episode, this is all about trying to help you to understand why it's not a good idea for you to ever consider this. So Alicia, maybe you can just touch on at the start the legal landscape of this. So from a legal standpoint, and then we'll get into some of the practical realities.
Alicia Backman-Beharry 3:59
Yeah. And so from a legal standpoint, anybody who's in Canada is going to have some sort of status document. If you're not a Canadian citizen or permanent resident, then you have to have something else to allow you to be inside of Canada. And that something else could be an electronic Travel Authorization, it could be a visitor visa. So those are the key temporary status documents, the way to get into Canada, eta or TRV, and then after that, you might also have a study permit or a work permit, or some other maintained or authorized status to work if you're kind of in between an extension on those documents. So what happens when your status expires? And there's two things you need to keep track of. One is the work permit or the study permit. What's the expiry date on that? The other is, what's the expiry on your ETA or your TRV. And so the key thing to look at here is regulation 183 of the immigration and. Fiji protection regulations, and this says here's when your authorized stay ends, among other things, if you leave Canada and you're not authorized to re enter, right? If you leave your your status might be gone when your study or your work permit expires, your status is gone when the extension of your your visa ends, right? So if your ETA or your TRV is expired, then your authorized day ends. Sometimes people don't know. So in some cases, especially Americans, if they've come to Canada and all they have is a little stamp on their passport, or sometimes there is zero stamp on the passport these days, then the rule for that is six months from the date that you entered Canada. So if there's nothing stamped on the passport, the rule is after six months from the date that you entered your authorized stay ends if you had a TRP, which is another specialized document we can talk about a little bit more. But if you have a TRP, whenever that expiry date on the TRP ends, then you have no authorized day. And then the other interesting one that people might be missing and is probably going to come up more more frequently now, is the date of your biometrics. And so biometrics have now been required for a number of years, and if your biometrics are 10 years old and you haven't renewed your biometrics, that is also going to be a trigger point for your end of authorized stay. Last important one to talk about right now is when your passport or your travel document expires, so that is also going to end your authorized stay.
Mark Holthe 6:41
You know, lots of people, they, they, they just gloss right over the realities of the legal side of things when we're, you know, when we're talking about individuals that that make this choice to to, you know, to let their status expire, let their visitor status, their work status or study permit status expire, there is still a way to restore status, right? Alicia, and so after you've got a 90 day window to fix it, essentially,
Alicia Backman-Beharry 7:16
yeah, and we'll do another kind of talk on restoration itself. But it is important to note, and so I've talked about this also in the in the two times up blog series articles that we have on our website. But there are certain circumstances then that cannot be fixed by restoration, right? Certain types of overstays or actions that you've taken that make you inadmissible to Canada cannot be fixed by restoration, but in a lot of cases, a simple overstay can often be fixed by restoration, just like you say, Mark, if you make sure to do that restoration application within that initial 90 day period from when your status ended. And that's why we were talking about regulation 183 because it's important to know what's the day that your authorized period ends. Yeah. So here are the articles. There's two of them. The first one is the overview with the little clock there. And then the second one is, how long can I stay in Canada after my work permit expires? And that's going to be a written version of many of the things we're talking about today.
Mark Holthe 8:22
Okay, let's shift gears. So to this point, we've covered a little bit about the legal landscape. So the next thing that I want to touch on is the immediate consequences of being illegal. So what happens the moment that work permit? And even you know, technically before, even if you're within the restoration period, what happens when an individual allows their work permit to lapse and they do not leave Canada before that date?
Alicia Backman-Beharry 8:53
And this is also in the section, so an inadmissibility happens, basically. And so now, under the immigration and refugee protection act, not the regulations. So now we're into section 41 of the act. And so anybody is is inadmissible under Section 41 for non compliance. So if you fail to comply with the act, and the Act says anybody who's in Canada who's not a Canadian citizen or PR needs to have valid authorized status, and your status ends under Regulation 183 so you're inadmissible for failing to comply with the act, and in says in the case of a foreign national through any act or omission which contravenes directly or indirectly a provision of the act. So it's important for people to know that inadmissibility happens after that work permit expires, after the TRV status expires, or any of those other things that we just
Mark Holthe 9:47
talked about, yeah, and the reality is, sure, you know you're inadmissible, but there may be employers out there that are willing to to hire people and pay. Them under the table, which then leads to a potential for massive exploitation, and I'll share a little experience. Even fairly recently, there was a client that I had. Well, it's been probably three years now. Fortunately, the client is a permanent resident, but they were working for an employer. They did not have a work permit, the employer was holding out this little carrot that they'd get an LMIA and support their permanent resident status in Canada. But unfortunately, it never came. And then one year led to two years led to three years, and in that time, they continued to extend their stay as a visitor. So in their case, they didn't even allow themselves to completely fall out of status, but they were still in this world where they were on visitor status and did not have work authorization. Well, minimum wage in Alberta was about $15 an hour. She was getting paid $11 an hour, right, cash, and she, she, you know, didn't have a work permit, so she was completely at the whim of this employer, and it was a really, really bad situation. Fortunately, she came to me, and there was some options that we had available to to try to fix her status. We reported it to the authorities. I wish the authorities were had a harsher hand. That's kind of my view. But regardless, this person was just had no power, and they were completely subject to the whims of this employer. So you have to be careful. You know when, aside from, you know the fact that maybe you're going to get lower wages, you have no protection from employment standards. You know, in some cases, she worked more hours than she was paid, let alone not getting paid over time. And all of the protections that are in place when an individual has valid work authorization, you know, they're they're just not there, so be aware of that. Now, yeah,
Alicia Backman-Beharry 11:55
go ahead and and you bring up a really good point mark, because sometimes people think, Oh, well, I fell out of status. Maybe I'll just work under the table for a little bit, and then maybe at some point I can get, you know, an employer to support me on an LMIA or some other international mobility program, LMIA exempt work permit. Maybe I can somehow regularize my status later. And the problem with this is that there's actually regulations that say, if you've engaged in unauthorized work or unauthorized study and you try to apply for a new study permit or a new work permit, there's actually a six month bar. And so under regulation, 200 sub three if somebody and this applies to students as well, if somebody has engaged in unauthorized study or unauthorized work, officers at IRCC are not allowed to issue a new study or a new work permit until six months have elapsed since that last day of unauthorized work or study. Yeah, so it's a it's a long section, yes.
Mark Holthe 13:09
All right, let's continue on. So we've covered to this point the immediate consequences of remaining in Canada illegally. Then there's the long term impact Alicia. And you know, this is, this is something that, you know, we could we get into so many other aspects of, you know, short term, your your driver's license expires, your Social Insurance Number expires. You know, you lose health care coverage. So all of those kick in in the short term. And not to mention if, you know, once you become illegal, Canada tracks exits and entries. They can see from based on your passport if you haven't left the country. And for example, if the US, if you're applying for a US visa. Later on, Canada has a lot of information sharing agreements with, you know, with the US, the UK, Australia, New Zealand, other countries. And so the consequences of remaining in Canada without authorization can actually affect your ability to go to other countries as well. And you know, so these are going to stay with you, you know, not just in the short term, but But long term. So when we're thinking about the reality in terms of long term impacts, you're going to be living in poverty. Alicia, you know there's no promotions, right? You're going to employers that are willing to to hire you and to pay you under the table. You know you're going to hardly have a substance, a subsistence job, like you probably won't even be able to to maintain enough money, you know, to support yourself in Canada, let alone sending some home to your family. And there's no opportunity for career growth. There's no upward mobility and getting promotions and things like that. And, you know, and if there is man, I. Yeah, let alone just knowing that you're out of status, and at any point in time, someone could report you to the authorities, like, from a psychological standpoint, from an emotional standpoint, just a wellness standpoint, I can't imagine the stress that would be on someone's mind, you know, wondering one day if you know someone's going to come knocking to, you know, to start removal proceedings, you know, so your your employment is unstable. You're often faced with low wages, and that constant fear of deportation is a reality. Now, Alicia, we've heard, you know, this is one of the rumors, you know, and myths, I guess, that I want to dispel. But you know, there's this perception. Well, remember before when Minister Fraser, right here, when he he came out, and, you know, granted an 18 month post grad work permit under, you know, special measures to individuals who had fallen out of status. And in fairness, Alicia that those provisions were retroactive. To some extent, they saved people that were outside of the 90 day period for restoration. And so what would you say to individuals who said, Well, you know, they're not going to let us, you know, go illegal too long. There's going to be an amnesty. There's going to be an ability to allow us to transition to PR What is your what are your thoughts on that?
Alicia Backman-Beharry 16:24
My thoughts on that is that we're in a whole different world now. And so those temporary public policies were enacted when we had a really a labor market that required workers, and we were just coming out of COVID, there were labor market needs. People couldn't leave. There were kind of exceptional circumstances, and that's where those came from. That is no longer the case. That is no longer the world right now, the labor market is super tight. The housing market is extremely difficult. Strains on health care, there's strains on other aspects of infrastructure and social services, and now the tide is turning, and immigration is saying not only are we going to have fewer numbers of temporary residents overall, but we have a goal to bring down that level of temporary residents over the next year. And so they're actually actively reducing the number of visitors and workers and students. There are caps now on the study permits. Master students and PhDs are subject to the caps. We have provincial attestation letters. We have this world where there are now going to be restrictions on post grad work permits, right? So there's a language requirement. Going forward, there's going to be linking your post grad work permit to what sort of program is going to be in demand and tied to a labor market objective. And so this is a totally different world, and there will not be a safety net thrown out to save you, because immigration federally, is reducing all the temporary resident numbers,
Mark Holthe 18:03
and one thing we cannot ignore is the impact of politics within these decisions. We have an election coming up. We don't know what the outcome will be, you know, but one thing we do know is that the public perception of immigration is starting to take a little bit of a hit, and maybe that's an understatement. And so when elected officials feel like there's an issue that is becoming almost a wedge issue in the election, well they're going to take whatever steps they can to try to gain favor with that. You know, that portion of the electorate that they think may vote for them if they make certain decisions. And one of those decisions like Alicia talked about, is the reduction in temporary residents in Canada at extreme cost, right? And you think of the steps that are being taken, even recently there, they've instituted even further rules to, you know, to restrict the availability of labor market impact assessments, even for employers who want to retain their workers longer if they're on a post grad work permit. We know that if the Conservatives get elected, they tend to be a little bit more strict with their immigration policies. They're not nearly as open as the Liberals have been. And you know, there's a far greater adherence, you know, to, you know, to putting Canadians first, not that the Liberals didn't, but for sure, their policies, you know, especially the 18 month post grad work permits. It's unlikely, if the Conservatives were in power that they would have done that, but we just don't know. But going forward, we've heard rumblings of them even looking to tie immigration numbers to housing built in Canada. And so when you have these realities, I'll just reiterate like Alicia, an amnesty is not coming. And so to make that your basis or your justification for allowing yourself to fall out of status is something we would never, ever advise you to do. So. So we have now spent a little bit of time, you know, scaring you as much as we can. And we don't mean to scare but just to educate you, the reality is people need to also understand that going home may be the smarter option. And you know, when we look at, you know, some of the discussions that have occurred over this last little bit. We'll get our things lined up here. There's been a lot of discussion about, well, if I go home, I may never be able to come back. Well, the reality is, if you go home, this may be the only way that you can come back, by remaining in valid status in Canada, and when that status expires, you abide by the temporary conditions and Show Canada that you left when your permit expired, and when you are looking to come back to Canada, Alicia, showing that you've complied in the past is going to be a huge, huge positive when It comes to applying for another temporary application to come back.
Alicia Backman-Beharry 21:03
Yeah, so and so, maybe Mark, I'll say this. I'll say, let's go through two scenarios. Let's say scenario a you know that your work permits expiring. You decide, I'm not sure what I'm going to do, I'm just going to try to stick my head in the sand and hope that this goes away. You keep working past the expiry of your work permit. Eventually you know, you realize that you don't have health care, you don't have any ability to protect your status, and you're falling into economic difficulty. And so eventually you decide, okay, well, I better go home. But if immigration issues removal proceedings. And so this is something that smart Mark has talked about as well, that you can be removed once you're inadmissible. And so if immigration starts to issue removal proceedings against you, this is now on your record. The overstays on your record. You are removed from Canada, and you will have to get what's called an authorization to return, which is special permission from the Minister to ever be allowed back in Canada. That's Scenario A. That is not a good scenario. Scenario B, just like Mark said, is you realize your work permits expiring before the end date on your work permit, you make all your everything you need to do to tie up affairs in Canada. You move back to your home country, you start working in your in your home country, and you have left Canada before that end date on your work permit, you're now in a position where you can gain foreign work experience, which might help your CRS points, and you have voluntarily left in compliance with your authorized Stay, so there is no mark against you on your immigration record. And if you qualify in the future for another work permit or a study permit or a permanent residence application, there's no inadmissibility that you need to then overcome. You're in a much stronger legal position.
Mark Holthe 22:56
And I can confirm as well, the reality is, if you do stay that black mark on your record, if you stay for a few months and then decide, oh, maybe I'm going to go home because I ran out of money, or whatever it might be. Well, that that extra two months that you've chosen to stay beyond the validity of your temporary document, it can mean all the difference in getting that next one approved. So it truly results if you comply and go home in coming and re approaching Canada from position of, it's a more powerful position, because when you're saying, hey, I want to now apply for a visitor visa to come to Canada, or I want to come back and I've got another job offer for another company, they're going to go back and look, and they'll see, oh, okay, that work permit expired. This person went back. And so it's pretty hard for them to say, well, we don't believe that you go home following the completion of your temporary stay. It's hard for them to make that argument when you've already demonstrated an ability to do that in the past. But the converse to that is remaining longer, and then they can use that and say no, even though you've got this rock star job, even if it's an inter company transfer or something like that that's under the international mobility program or an international agreement that Canada maybe enters into with your country. In the future, they will look at your history, and even in those circumstances, they can say, No, we're not going to approve this, because you've shown that you will stay beyond the authorized period of your stay in the past, and we think there's a good chance to do it again. And so another reason, and you know, Alicia, I'll just bring up that. I'll highlight one other thing that you said, which in terms of Express Entry, people that do not have any foreign work experience. They've just come to Canada, they've studied, they've worked. You need to just do your own math with the comprehensive ranking system and just assess what would happen if you went back home and gained one more year of foreign work experience. In many instances, it actually results in a fairly substantial. Points boost. It depends on other factors for sure, but just do the assessment and see for yourself. And so you take this awesome experience that you've gained in Canada, Canadian education, you go home, you reset, and it's entirely possible that other options will present themselves in the future, and even if not in Canada, maybe in another country, but compliance, compliance is always best. Now, Alicia, I just want to hit on so we can get just a couple more last minute. Actually, we'll do this one here, the employers to avoid and the hidden cost of staying. We address this a little bit briefly, but please, please, please, you guys, there is massive risk of working for employers unlawfully without, you know, work status like, like we said, I'm going to reiterate, they won't follow the Employment Standards rules. You'll have very little protection, if any. And the reality is, for those employers, built into the immigration and refugee protection act and the regulations, there are provisions that can, even, you know, result in jail time and fines for employers who hire undocumented workers. Now, the fines, absolutely, we've seen that bans from the foreign worker program. We've seen that I haven't yet seen jail time for an employer who is, you know, employed without authorization. But you know, anything is possible, but in terms of just crushing future opportunities, when people are in these desperate kind of dire straits, Alicia, sometimes they'll turn to marriages of convenience. Do you want to just hit on that very, very quickly? Because this is kind of one of the other, you know, hidden, hidden costs.
Alicia Backman-Beharry 26:40
And sometimes it happens that you've come to Canada, you've been studying and working here for a number of years. You meet a lovely Canadian, and you start a relationship. It is really important that you're not rushing into a marriage, a legal marriage, or, you know, moving in together and hitting that one year common law cohabitation espouses in order to gain an immigration privilege. And so immigration is going to look at your history. They're going to see Have you applied to other programs? Do you have, like, express entry applications sitting in the pool? Have you done a PR application in the past that's been refused? Or is your work permit now about to end, and all of a sudden you're getting married. It is very important that that is a real relationship, that you guys are committed to each other as life partners, and that's the reason that you want to get married and or to move in together and become common law partners, not that you want to get immigration status. And so it is really important that you are aware of what the marriage of convenience, fraudulent marriages are all about. It is a violation. It is not a real marriage if it was entered into primarily for the purposes of immigration status. So there's a two part test under section or regulation four. And so it says, you know, it's not a real marriage if, even if other factors are genuine, if the reason that you entered into that marriage was to maintain or obtain an immigration privilege. So be really aware of that. Make sure that if you are going to get married to a Canadian, do it the way that you would normally. Enter into a marriage, have your family present, go through all the ceremonies that you would normally go through. Plan it in advance. Go home to your home country, if required, make sure that you are submitting your application. And there's an article that we have on the blog about an in Canada application versus an outside Canada application, if there's a risk that you might be refused for a bad faith marriage, you know, make sure that you file a Family Class application outside of Canada and that you have a right of appeal to the immigration appeal division. Yes.
Mark Holthe 28:52
And as we wrap up here, Alicia with the last thing that we wanted to address, this is just the beginning. You guys, so please subscribe, because this time's up series today we talked about the high cost of staying in Canada legally. But we're also going to be addressing the the real options, and, like I said, busting some of the myths that are associated with, you know, applying for restoration of status, applying for things like temporary resident permits, or, you know, filing for refugee status or things like that, and humanitarian and compassion applications. We're going to break down these in detail, the how tos, but also when to know not to apply, when to know that I should just go home and not try to exhaust these options. And so we're going to try to help to set those things up for you and and just really clarify a lot of these things. I'm also going to talk about politics a little bit in terms of the various parties platforms, because when you are looking at what elections are happening, and we've got one coming next year, those. Parties have different platforms and different policies related to immigration, and knowing where they where they stand, what they've said, can give you a better idea as to what the future might hold, because you know who would have thought even two years ago that our Liberal government would be making the decisions they are making right now, with respect to the foreign worker program, the restrictions, the caps, all of the changes that they're making now, you just it's hard to anticipate, but the more information, the more knowledge you have, the better position you are to make good decisions for your future. So we're going to be doing more future episodes. We'll be releasing them here on our YouTube channel, as well as on the Canadian immigration podcast. To make sure that you subscribe to both of those, I want to just give a little bit of a shout out here. Whoops. Let's see to our Express Entry accelerator, which is our new course that we created this year for the purposes of assisting people who are looking at Express Entry. And I'm just going to shift over here and just share this quickly so you can go to the Canadian Immigration Institute. And we actually have a bunch of courses, but the Express Entry accelerator, that express entry course is available now, and there's a an awesome little master class associated with it that I run, and that goes every two weeks, on Wednesday evenings. And we also have a brand new one on temporary resident visas. So if you or your family are looking to come and apply to Canada, this is a great little DIY course that Igor created to help you navigate the process. And we've got a Canadian citizenship application course coming up, and a bunch of other ones. We're also going to be releasing our spousal sponsorship course and our study permit course, which went back to the drawing board to do some revisions, because the government's constantly changing things. So we want to express thanks, you know, to the Canadian Immigration institute that is the sponsor of this podcast. But I also want to bring up that within our firm, anytime you're in a situation where you don't know where to go, that's where legal advice can really help. And in our live Q and A's that we do every Wednesday morning, which we're going to be doing about a minute from now, after recording this episode, we are able to answer questions. So join us on the anywhere you're following that live Q and A that is spread out through LinkedIn and Twitter even, and YouTube, of course, so wherever you watch it, you can get general questions answered, but if you need specific legal advice, you can go to our firm website. There's a link in the description for this episode, and you can book a consult with Alicia myself or Igor, and it's super easy to book it. They come in 25 or 50 minute consults, and you can get the legal advice to help you make the good decisions when you're in tough spots. But as always, Alicia and I absolutely love when you reach out to us early so that we can have time to help you plan. Because usually, when you wait to the last minute and call us as the last option, often there's not much that we can do. All right. Thanks so much Alicia for joining today. Thank you for tuning in to this episode of the Canadian immigration podcast, and as always, like, subscribe and share it with everyone you know. Thanks so much. Take care. You Steve,
Intro 33:24
thank you for listening to the Canadian immigration podcast, your trusted source for information on Canadian immigration law, policy and practice. If you would like to book a legal consultation, please visit www dot Holthe law.com you can also find lots more helpful information on our Canadian immigration Institute YouTube channel, where you can join mark on one of his many Canadian immigration live Q and A's, see you soon, and all the best as you navigate this crazy world we call Canadian immigration. You.
Transcribed by https://otter.ai
