The economic challenges and the associated travel restrictions have brought into focus the intersection between employment and immigration laws. This blog is intended to demystify some points that can appear when there is a disruption to economic activity or travel. This information is relevant to both employers and foreign workers and is based on common issues.
What is Implied Status?
Implied status allows foreign workers to continue working in Canada while waiting for a decision on their application for a new permit (whether it be a work permit, study permit, or visitor record).
Specifically, the Immigration and Refugee Protection Act (“IRPA”) (the most important statute guiding Canadian immigration law), states that if a temporary foreign worker applies to extend their work permit (or other permit) before their current work permit ends or expires, then that temporary foreign worker’s status is extended by law until a decision is made with respect to the new work permit application.
The temporary foreign worker can legally stay in Canada and is therefore considered to have “implied status” during that period and is legally permitted to continue working pursuant to the terms of their expired permit.
It is important to note that under implied status, you can continue to benefit from the status under your expired permit, not the new one you are applying for. This can be relevant when individuals apply to either change their status or switch employers. Having said this, some exceptions to this rule can be reviewed with a qualified employment lawyer with expertise in immigration law.
Employer and Employee Obligations
The dynamic between employer and employee obligations under Canadian immigration law emphasizes a collaborative approach to compliance. By diligently fulfilling their respective responsibilities, both parties contribute to a lawful, transparent, and efficient working environment. Employers’ due diligence in verifying work authorization and employees’ proactive status management form the cornerstone of this compliance framework, ensuring that the employment of foreign workers in Canada adheres to the stringent requirements of IRPA.
For Employers: Exercising Due Diligence
Employers are tasked with a critical responsibility: they must exercise “due diligence” to confirm that their workforce complies with the legal requirements set by IRPA. This entails a proactive approach to verify the employment eligibility of their employees. Specifically, employers should request and review employee-specific documentation that evidences their right to work in Canada, such as a valid work permit. This process is vital not only for maintaining legal compliance but also for safeguarding the employer against potential legal repercussions associated with employing unauthorized workers.
In instances where an employee’s work permit is nearing expiration or has already expired, employers have the right—and indeed, the responsibility—to request evidence of what is known as “implied status.” Implied status refers to the condition in which a foreign worker has applied for a new work permit prior to the expiration of their current one, thereby extending their legal authorization to work in Canada until a decision is made on their new application. Employers should ask for any documentation available that proves the employee’s application for a new permit is underway, ensuring continuous compliance with IRPA regulations.
For Employees: Proactive Status Management
On the flip side, employees, particularly those under temporary foreign worker status, bear the onus of actively managing and monitoring their legal status with Immigration, Refugees and Citizenship Canada (IRCC). This proactive management includes a continuous update mechanism wherein employees keep their employers informed about their immigration status. Specifically, employees should:
- Inform their employer about activating their implied status, accompanied by supporting documents where necessary.
- Notify their employer promptly of any updates regarding their status, including but not limited to, receipt of a new work permit or decisions made on their application.
This ongoing communication is crucial for maintaining a transparent and compliant employment relationship. It ensures that employers are always in the loop regarding their employees’ legal status, thereby enabling them to make informed decisions and take necessary actions in compliance with IRPA.
In cases where a temporary foreign worker’s work permit has expired or is close to expiring, it is generally acceptable to request proof of implied status, including any available proof that the foreign worker has applied for a new work permit before the expiry of their existing work permit.
Employees should accordingly be proactive with respect to both monitoring their status with Immigration, Refugees and Citizenship Canada and ensuring that their employer is regularly updated with respect to that status. This includes informing their employer (with supporting documentation, where appropriate) once their implied status comes into effect and as soon as they receive any update with respect to their status (including a decision on their application).
Social Insurance Numbers and Termination of Employment
A Social Insurance Number (“SIN”) is a nine-digit number needed to work in Canada and access government programs and benefits.
SINs that begin with a “9” are issued to temporary foreign workers and are valid only until the expiry date indicated on the immigration document authorizing them to work in Canada (i.e., their work permit).
Temporary foreign workers must update their SIN record to ensure that the expiry date always corresponds with the expiry date on their work permit. Once their SIN record has been updated, the temporary foreign worker will receive an SIN with the new expiry date.
While a temporary foreign worker is on implied status and waiting for their new work permit to be issued, their SIN number, tied to their expired work permit, will be expired. This does not mean the employee can no longer legally work in Canada.
Employers can legally continue to employ a temporary foreign worker whose SIN number has expired as long as the temporary foreign worker remains on implied status and meets the requirements. Employers should not take action to terminate the employment of temporary foreign workers who are on implied status simply because the temporary foreign worker’s updated SIN number has not yet been issued. This may lead to a wrongful dismissal claim and significant liability such as extended severance pay and bad faith damages (particularly for closed work permit holders deemed particularly vulnerable given their temporary status in Canada).
Employees should also be diligent in updating their SIN numbers and providing the new SIN information to their employers as soon as possible.
If you are a temporary foreign worker and need assistance with explaining the legal merits of implied status to your employer, or alternatively, if you are an employer who wants to understand if your employee is legally authorized to work in Canada, we invite you to contact Toronto employment lawyers Sultan Lawyers at 416-214-5111 or submit contact form.
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