Spousal sponsorships: Open work permits for some spouses and dependent children
Who can apply?
Almost everywhere you turn, IRCC has restricted the ability of Foreign Nationals (FN) to obtain or renew temporary status, whether that is a study permit, a work permit or visitor status. The one option that has not yet been whisked away is the quiet temporary public policy from 2023 that allows some spouses and dependent children who are inside Canada to apply for an open work permit. Not everyone is eligible, so make sure you understand if and when you might be able to apply for an open work permit.
Difference between SCLP and FC1
There are two legal categories of spousal sponsorship, Spouse or Common Law Partner In Canada Class (SCLCP) under Division 2, regulation 123-129 of IRPR and the Family Class (FC1) under Division 1, regulation 116-122.
Why does this matter?
Because FC1 applicants have:
a right of appeal to the Immigration Appeal Division (IAD),
faster processing times at about one year,
can theoretically enter and exit Canada if they have a valid TRV or eTA,
but historically cannot apply for an open work permit.
Note that there is nothing in the Family Class definition that requires the FN spouse to have status in Canada. That means a Family Class application, which is sometimes referred to as an ”outside Canada” sponsorship, could be filed and the FN spouse could be physically present in a foreign country or, if they have a valid TRV or are visa exempt and inside Canada with an eTA, they might be physically present inside Canada. It is important to remember that filing a spousal sponsorship application is a permanent resident application and in no way guarantees or gives temporary status to a FN. FNs need to apply for a TRV or hold a Visitor Record or apply for a study permit or a work permit if they are eligible.
In contrast, SCLCP applicants:
do not have a right of appeal to the IAD,
processing times for SCLCP are over a year longer right now (currently 36 months),
cannot freely travel outside Canada without risking the SCLCP, and
historically only SCLCP applicants might be eligible for an open work permit from inside Canada.
The definition of a SCLCP member under r.124 is that:
the foreign national is the legal spouse or common law partner of a Canadian and cohabits with their sponsor in Canada,
has valid temporary resident status in Canada, and
a sponsorship application has been submitted.
The normal rule is that it is only when a Canadian filed a SCLCP application and their sponsored Foreign National spouse has temporary resident status in Canada that the Foreign National spouse could apply for a work permit if IRCC confirmed the spousal sponsorship application had passed the Acknowledgement of Receipt (AoR) or first stage eligibility. Years ago, we could submit the SCLCP and the open work permit applications at the same time. Then IRCC said applicants had to wait for the AoR before they could submit a separate open work permit application. But then the processing times for SCLCP inflated to 24-36 months.
Temporary Public Policy Feb 9, 2023
Enter the public policy to provide some relief under s.25.2 of IRPA. Minister Sean Fraser signed the temporary public policy in 2023 and it has not yet been revoked as of date of writing. The policy allows spouses and dependent children who applied for PR either under SCLCP or under FC1 to apply to work in Canada while IRCC processes their spousal sponsorship. The idea behind the policy is that it improves integration and allows some foreign national spouses or dependent children with valid status, maintained status or restored status to contribute to Canadian society earlier in their journey. The public policy allows IRCC to make an exception to the normal rule that people cannot apply for a work permit from inside Canada unless they meet certain conditions under R. 199(a) to (i).
Max duration of WP
The public policy only allows a maximum requested duration of open work permit for 2 years.
Eligibility criteria for open work permits for spousal applicants
There are a number of criteria that spouses need to meet.
The FN has to be a principal applicant for PR under either a SCLCP or under the Family Class AND IRCC has to accept the spousal sponsorship application for meeting completeness under regulation 10 and the Ministerial Instructions that requires a complete application package according to the IRCC website including all information documents and evidence and document checklist requirements. IRCC interprets this as meaning that there is a genuine relationship and your sponsor has received AoR or Approval in Principle.
The work permit must be submitted under regulation 200 or 201 and the duration request is for a maximum of 2 years.
The spousal sponsorship must have been submitted by a Canadian citizen or Canadian PR spouse, common-law or conjugal partner (conjugal partner is only available for FC1 applications).
The FN and the Canadian sponsor must have the same residential address at the time of the work permit application.
The FN must have valid TR status in Canada or be eligible for and have applied for restoration of status.
The same criteria apply for dependent children who have been included as an accompanying family member in the spousal sponsorship PR application. Dependent children are defined in regulation 2 (biological or adopted child who is less than 22 years old and is not married or in a common law relationship or is 22 or older and has depended substantially on the financial support of the parent since before age 22 and is unable to be financially self-supporting due to a physical or mental condition).
Make sure to check your Province’s rules about the minimum age to work for dependent children and ensure your child’s employer is meeting wage and employment standards code provisions for your Province.
Who CANNOT apply
IRCC says you cannot apply if your spousal sponsorship has been refused, withdrawn or returned. You also cannot apply for this open work permit at a Port of Entry (POE).
What if you don’t have AoR?
IRCC interestingly allows an exception to their interpretation that you need an AoR. IRCC will allow the FN to apply for an open work permit if their current work permit, study permit or visitor status will expire in 2 weeks or less AND the SCLCP or FC1 application has been submitted and the person is in status.
This helpful exception has been very handy for some of my clients who were about to lose status but who managed to file the spousal sponsorship and then apply for the open work permit under this public policy interpretation.
How to apply
Method of application depends on whether the FN currently has valid TR status. All normal IRCC fees still apply including biometrics, work permit fees, open work permit fees, and restoration fees if applicable.
If you have valid status, you must apply online through your IRCC secure account, indicate in the online questionnaire that you are applying for an open work permit under an active IRCC public policy, and make sure you select “open work permit” in your application form for the type of permit and specify “SCLPC FC OWP” in the Job title box and “SCLPC FC applicant in Canada public policy” in the Brief description of duties box. Make sure you also upload all supporting documents to prove you fit the requirements of the public policy (AoR, current valid permit, proof you submitted the spousal, marriage certificate or statutory declaration of common law union/ birth certificate for children, all forms and supporting documents showing dual intent).
If you do not have valid status, you must apply on paper for your open work permit and pay restoration fees in addition to the open work permit fees if applicable. If your spousal sponsorship is being processed under the spousal public policy under A.25(1) of IRPA to facilitate processing in accordance with the Regulations of the SCLCP, you MUST include the Approval in Principle letter. In addition to the documents above, you need to write a letter explaining that you cannot apply online because you are out of status and must provide a copy of your Approval in Principle letter.
Note that the Approval in Principle letter is different than the Acknowledgement of Receipt (AoR) letter. AoR happens fairly early on when IRCC determines that it is a complete application. Approval in Principle only happens later when IRCC also finds the sponsor eligible, the FN is admissible, and they believe it is a genuine relationship.
Getting it right
There are a number of areas where couples or parents can err when trying to apply for an open work permit once the spousal sponsorship has been submitted. Make sure to reach out and book a consultation if you would like legal advice or assistance from HIL. This article is not legal advice and is merely information based on law and policy as it currently exists.
About the author:
Alicia Backman-Beharry
Canadian Immigration Lawyer