Filipiniana News - June 2012
Rhyme and
Reason
By Maria Deanna P. Santos
Despite the changes to the Live-in
Caregiver Program (LCP) in the last few years that were meant to improve the
situation of its participants, there are still
many caregivers who fail to
complete the program or end up losing their temporary resident status. Upon further inquiry, it turned out that many
of these caregivers were either terribly misinformed or had no knowledge of even
the most basic requirements of the Immigration and Refugee Protection Act (IRPA) and its regulations in
maintaining their temporary resident status in Canada.
Thus, I hope that the following
review of the most basic requirements of
IRPA as they relate to participants of the LCP will help avoid further
instances of caregivers inadvertently losing their temporary resident
status.
1.
The initial LCP work permit issued by an immigration officer to a
caregiver upon arriving at the airport is an employer-specific work
permit. This means that the caregiver is
only authorized to work for the specific employer named on the work permit.
2.
If, for any reason, the caregiver cannot anymore work for the employer
named on the work permit, the caregiver cannot work for another employer right
away and using the previous employer-specific work permit as basis. This is a clear violation of IRPA and can
render the caregiver inadmissible to Canada.
3.
If the caregiver leaves the employer named on the work permit, the
caregiver will need to find another employer who will then apply for a labour
market opinion (LMO) from Service Canada.
Once the LMO is granted, the employer will need to provide the
prospective caregiver with a copy of the LMO so that the caregiver can apply
for a new employer-specific work permit from CIC.
4.
The issuance of the LMO by Service Canada does not authorize the
caregiver to start working for the new employer. The caregiver will still have to wait for the
new employer-specific work permit before starting to work for the named
employer.
5.
Whether or not the caregiver is changing employers, he or she must apply
for a renewal of the work permit prior to the expiry date of the previous one
to ensure that he or she will maintain their temporary resident status in
Canada.
6.
If the processing of the work permit renewal application is delayed and
the previous work permit expires before a new one is issued, the caregiver will
have implied status.
7.
Implied status means that the caregiver can continue working under the
terms and conditions of the previous work permit.
8.
Implied status ends upon receipt of the decision of CIC granting or
refusing the work permit renewal application.
9.
If the caregiver has left a previous employer but has not found a new
employer prior to the expiry of his or previous work permit, the caregiver can
apply for a bridging extension which can be issued for a maximum of two
months.
10.
When the LMO for the new employer is issued after the expiry of the
previous work permit but before 90 days have passed, the caregiver will need to
apply for a restoration of temporary resident status in addition to the work
permit renewal application. The
restoration fee is $200 and the work permit renewal processing fee is $150 for
a total CIC processing fee of $350.
11.
If the restoration and work permit renewal applications are submitted
beyond 90 days from the expiry of the previous work permit, the application
will be refused.
12.
For those who have completed the 24 months of full time live-in
caregiving work within 4 years of arriving in Canada, the caregiver must submit
an application for an open work permit along with the LCP permanent residence
application.
13.
If the previous work permit expires before the open work permit is
granted, the caregiver will have implied status as long as the LCP permanent
residence and open work permit applications were submitted prior to the expiry
of the previous work permit.
14.
Implied status in this case allows the caregiver to continue working for
the last employer named in the previous work permit. It does not authorize the caregiver to work
for any other employer.
15.
It is only when the open work permit is issued will the caregiver be
able to legally work in any occupation for any employer in Canada.
16.
It must be noted however, that the open work permit also has an expiry
date. If the LCP permanent residence
application has not been granted by the time that the open work permit is about
to expire, the caregiver will have to apply for a renewal of the open work
permit prior to the expiry date of the last one. Implied status will also apply if the last
open work permit expires before a new one is issued as long as the renewal
application was submitted prior to the expiry of the previous work permit.
17.
It is thus very important to note the expiry date on the work permit as
this will determine when the renewal or restoration application should be
submitted.
18.
If the open work permit application is not included in the LCP permanent
residence application and the previous LCP work permit has expired, the LCP
permanent residence application will be refused because the requirement of
maintaining temporary resident status has not been met.
19. The work permit only allows the caregiver to
work legally in Canada. If one wants to
travel outside and return to Canada, the caregiver must first obtain a
temporary resident visa (if coming from a visa requiring country).
20.
Although immigration officers have some discretion to grant an exemption
from inadmissibility or any violation of IRPA on humanitarian and compassionate
(H&C) grounds, this may not be granted if the officer is not satisfied that
there are sufficient H&C grounds to justify the exemption.
The above are just some of the most
basic immigration regulations and guidelines which must be clearly understood
by all LCP participants to avoid losing their temporary resident status while
awaiting the decision on their permanent residence applications. These are meant to provide legal information
only and not specific legal advice. If
you or someone you know, have a case-specific issue that is not addressed by any
of the above guidelines, it is strongly recommended that you consult a trusted
immigration legal advisor as soon as possible.
The author is a Canadian immigration lawyer and may be reached at
deanna@santoslaw.ca.
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