Alex is an overstayer in Canada. His work permit expired 5 years ago and he has been staying in Canada without authorization since then. In a message to our Facebook business page, he asked if he can apply as a food attendant in one of the job postings in a pilot program. He further asked “Could I apply for a work permit if I get hired?” He said he wasn’t able to extend his work permit because he didn’t have the money to pay his agency. In turn, his agency withheld some necessary documents for his extension application.
Inadmissibility
Alex is in hot water! He has overstayed his welcome. His application for a work permit will be refused if he gets hired in one of the job postings for the Rural and Northern Immigration Pilot (RNIP) program because he is inadmissible to Canada pursuant to Section 41 of the Immigration and Refugee Protection Act, or the Act for non-compliance of Section 29 (2) which states:
“A temporary resident must comply with any conditions imposed under the regulations and with any requirements under this Act, must leave Canada by the end of the period authorized for their stay and may re-enter Canada only if their authorization provides for re-entry”.
Restoration of Status for an overstayer in Canada
Alex failed to apply for an extension before his work permit expired, and he likewise failed to apply for its restoration 90 days after its expiry. Section 182, the Act allows a visitor, worker or student to apply for restoraration of status within 90 days after the expiry of their authorizations to stay in the country. IRCC is strict with this 90-day deadline hence this option is no longer applicable to Alex, who has become an overstayer in Canada.
Asked why he allowed all this to happen, Alex said he couldn’t focus on anything when his status expired because he found out that his fiance cheated on him and had become pregnant because of the affair.
Removal Orders for overstayers
If Alex continues to stay in Canada without valid status and Immigration, Refugees and Citizenship Canada (IRCC) and / or Canada Border Services Agency (CBSA) finds out he will be subject of a removal order for inadmissibility as per Section 41, the Act. Once an RO is in effect, Alex must leave the country right away or he will face a Canada-wide arrest warrant. Upon his arrest he would be placed in a holding facility until he is removed from Canada.
Temporary Resident Permit
To overcome admissibility Alex has the option of applying for a Temporary Resident Permit (TRP) otherwise known as the “Minister’s Permit” under Section 24, the Act. Under the TRP application Alex must satisfy the officer that he has exceptional and compelling reasons to remain in Canada. The officer will further weigh Alex’s need to remain in Canada against the health or safety risks to Canadian society. The TRP is “temporary” in nature meaning there is an expiration date set by the minister. Additionally, the minister may also impose conditions on the TRP.
Permanent Resident Application
Another option for overstayers like Alex is to apply for Permanent Residence on Humanitarian and Compassionate (H&C) grounds. In assessing PR – H&C applications immigration officers will consider the following: family reunification, best interest of the child, health issues, being established in Canada and the imminent hardship that the applicant will face when he is returned to his country of origin.
However, a PR application on H&C grounds will not delay his removal from Canada if Alex becomes subject of a removal order. He must leave the country on the date specified in his RO. IRCC will continue to process his PR application even if he’s been removed from Canada.
Leaving Canada
Alex must leave Canada. He must have left once he became ineligible for restoration of status. If he continues to stay in Canada knowing that he couldn’t overcome his inadmissibility through TRP or PR on Humanitarian and Compassionate grounds he is only making it worse for himself. It’s not the quality of life that anyone wants to live.
He may leave on his own volition before he becomes a subject of a removal order. He does not need to secure any documents from IRCC or CBSA if he leaves Canada without an RO. If his passport has already expired then he must contact his embassy or consulate so he will be issued a one-time travel document, also known as “emergency travel document.” This document allows him to go back to his home country.
Sad plight
What happened to Alex is extremely sad. Agencies are not supposed to withhold legal documents owned by their clients because of their inability to pay. In the same breath, Alex was also negligent. He did not seek any remedy when his status expired and his agency dropped him. However his continued stay in Canada without status is far from the ideal… it is in no way a fulfillment of the Canadian dream. Without status Alex no longer has a valid health card and he cannot maintain a bank account in his name. He also cannot obtain a driver’s license. He is constantly looking over his shoulders if someone would report him to IRCC or CBSA. He could not develop deep relationships because of the fear that he would get deported.
Being Proactive
While Alex has options to overcome his inadmissibility he has to present strong and valid arguments that would satisfy the visa officer. He would have avoided becoming an overstayer in Canada if he renewed his work permit on time or if he worked to restore his status soon after it expired. Coming to Canada was an opportunity of a lifetime. Temporary Resident Visa holders should be proactive when it comes to ensuring the validity of their status or risk being in a predicament like Alex.
