Employment termination and maintenance of lawful status - International Law Office

Temporary resident status and temporary resident visas
Effect of employee termination

Temporary resident status and temporary resident visas

Foreign nationals who hold work permits in Canada sometimes wonder what will happen to their immigration status if they quit their jobs or are terminated by their Canadian employers. The answer is not as simple as it appears and may be surprising to some.

All foreign nationals in Canada who do not hold permanent resident status are considered temporary residents. The term 'temporary resident' therefore includes visitors, students and foreign workers. Temporary residents are permitted to remain in Canada for a finite period; however, with limited exceptions, they are not permitted to attend school or engage in employment without obtaining additional authorisation. Therefore, a student will normally need to seek temporary resident status and a study permit. Similarly, a foreign worker will normally need to seek temporary resident status and a work permit.

Temporary resident status should be distinguished from a temporary resident visa. 'Temporary resident status' refers to the status given to a foreign national when he or she is admitted to Canada, whereas a temporary resident visa is an entry document that is inserted into the passport of a foreign national by a Canadian embassy or consulate.

Unless the foreign national is considered visa exempt, he or she must obtain a temporary resident visa at a Canadian embassy or consulate before arriving in Canada. The foreign national must then present the temporary resident visa to the Canada Border Services Agency (CBSA) at the time of entry. If CBSA is convinced that the foreign national is a bona fide temporary resident, he or she will be admitted to Canada with temporary resident status.

Visa-exempt foreign nationals need not obtain a temporary resident visa from a Canadian embassy or consulate; rather, they may simply travel to Canada and request temporary resident status on arrival. They must still establish that they are bona fide temporary residents, but if successful, they will be admitted to Canada with temporary resident status.

When a foreign national is admitted to Canada based on a work permit or study permit, he or she is given temporary resident status for the duration of the work or study permit. Thus, a foreign worker who is granted a three-year work permit will be admitted as a temporary resident for the same period.

Effect of employee termination

Effect on work permit and temporary resident status
The termination of a foreign national's employment does not automatically invalidate his or her work permit. According to Section 209 of the Immigration and Refugee Protection Regulations (SOR/2002-227), a work permit becomes invalid when it expires or when a removal order that is made against the permit holder becomes enforceable. Section 209 does not mention the termination of the foreign national's employment. Although a work permit authorises the foreign national to engage in employment with the employer listed on the work permit, it does not create a legal obligation to do so. As a result, if the foreign national quits or is terminated by the employer, this does not automatically invalidate his or her work permit. Since the work permit remains valid after termination of employment, the foreign national's temporary resident status also remains valid.

The work permit normally cannot be used to engage in employment with any other employer. If the foreign national quits or is terminated, it is unlikely that he or she will work for the original employer listed on the work permit in future. Nevertheless, from a technical perspective the work permit and the foreign national's underlying temporary resident status remain valid. As a result, the foreign national is entitled to remain in Canada as a temporary resident until the work permit expires, provided that he or she does not violate his or her status by working or studying without authorisation (which may result in the commencement of removal proceedings).

Effect on spousal work permit and temporary resident status
According to Paragraph 5.38 of the Foreign Worker Manual, spouses of skilled workers who come to Canada as temporary foreign workers may be authorised to work under Section 205(c)(ii) of the regulations without first having a confirmed job offer. Work permits granted to spouses of skilled foreign workers are considered open - the spouse is authorised to work for any employer in any occupation while the open work permit is valid.

The following eligibility requirements apply to spousal work permits issued under Section 205(c)(ii):

• The principal foreign worker must be working at a level that falls within National Occupational Classification Level 0 (managerial), Level A (usually requires university education), or Level B (usually requires college or apprenticeship training);
• The principal foreign worker must hold a work permit that is valid for at least six months; and
• The principal foreign worker and spouse must physically reside in Canada while working (or must plan to do so).

A foreign national whose employment terminates may wonder whether the work permit held by his or her spouse will continue to be valid, since issuance of the spousal work permit is conditional on the principal foreign worker holding a valid work permit in a skilled position. The spousal work permit (and underlying temporary resident status) should continue to be valid for the following reasons:

• The eligibility criteria described above only require that the principal foreign worker hold a work permit that is valid for at least six months. Since the principal foreign worker's permit should continue to be valid even after his or her termination, the spouse should satisfy the eligibility requirements, provided that the principal foreign worker's permit will remain valid for at least six months.
• Section 209 also applies to a previously issued spousal work permit. Therefore, even if the spouse fails to satisfy the eligibility requirements at the time, the previously issued spousal work permit continues to be valid until it expires.

Effect on travel abroad
Although foreign nationals who quit or have been terminated may normally remain in Canada as temporary residents until their work permits expire, they may find it difficult to re-enter Canada if they depart before the expiry of their work permits. CBSA officers at ports of entry will often refuse to re-admit holders of valid work permits once they learn that the foreign national is no longer working for the employer listed on the work permit. The legal basis for this practice is unclear. However, CBSA officers at ports of entry are responsible for determining the admissibility of arriving foreign nationals who seek admission as temporary residents. Some CBSA officers probably believe that possession of a valid work permit alone does not establish the foreign national's bona fide need to enter Canada, if the initial purpose for granting the work permit (ie, employment with the stated employer) no longer exists.

For further information on this topic please contact Henry J Chang at Blaney McMurtry LLP by telephone (+1 416 593 1221), fax (+1 416 593 5437) or email (hchang@blaney.com).