Spousal Open Work Permit: Who can obtain a spousal open work permit under the C41 or C42 category

On September 27, IRCC updates the public policy for open spousal work permit and limits open spousal work permit program to:

(a) close rotating spouses “loophole”

(b) require genuineness be demonstrated

(c) narrow spouses of students to students doing PGWP eligible programs

(d) not let students also get open spousal permits.

Who are principal foreign nationals

The principal foreign national is the first foreign national of the couple who obtained a study or work permit or was deemed authorized to work under the provisions of section R186 other than under paragraph R186(w).

In assessing eligibility for a spousal open work permit, the principal foreign national continues to remain the principal in the couple.

The principal foreign national cannot obtain a spousal open work permit under the C41 or C42 category based on the dependent spouse’s spousal open work permit.

For example, if the principal foreign national is a study permit holder and the dependent spouse obtains an open work permit under LMIA exemption code C42 for spouses of study permit holders, the study permit holder can not quit schooling and obtain a work permit in the C41 spousal category on the basis of their spouse’s C42 open work permit and employment in a NOC 0, A or B occupation.

Genuine relationship

As per section R4, a foreign national shall not be considered a spouse or a common-law partner of a person if the marriage or common-law partnership

• (a) was entered into primarily for the purpose of acquiring any status or privilege under the Act or
• (b) is not genuine

If officers have concerns as to genuineness of the relationship, they may request further documentation or information to confirm that the relationship between the dependent spouse or common-law partner and the principal foreign national is genuine and is not a relationship of convenience.

Documentary evidence for a spousal open work permit

With the application for a spousal open work permit, the dependent spouse or common-law partner should be providing the following:

For all spouses or common-law partners:

• evidence of relationship (for example, marriage certificate, Declaration of common-law relationship)

For C41 category:

• they meet the general eligibility requirements
• evidence of the principal foreign national’s authority to work in Canada for 6 months after the date of C41 work permit submission
• evidence that the principal foreign national has met specific eligibility requirements for their situation (if applicable)

Principal foreign national is an open work permit holder or authorized to work without a permit under R186 [except R186(w)], the occupation skill level can not be determined solely by means of the work permit. Therefore, the spousal applicant must also provide the following:

• a letter from the principal foreign national’s current employer confirming employment, and their occupation, with a description of duties or a copy of their employment offer or contract and
• evidence that the principal foreign national is employed in a NOC 0, A or B occupation at the time of work permit application until a decision on the application is rendered

If officers have any concerns as to the genuineness of the proof of employment provided, they may wish to undertake an assessment to ensure this material information is genuine and does not reflect a direct misrepresentation of facts in order to appear eligible for the permit.

For C42 category:

See Documentary evidence for spouses of study permit holders for detailed evidence requirements.  In general spouses of study permit holders require:

• Evidence that the principal foreign national holds a valid study permit
• Evidence that the principal foreign national is enrolled in a post-graduation work permit- eligible study program and institution as described in post-graduation work permit- eligible programs and institutions
• Evidence that the principal foreign national is actively pursuing full time studies

Officers should be satisfied that the principal foreign national continues to comply with the study permit conditions. Should officers have any concerns, they may wish to request additional information from the applicant to ensure eligibility requirements of the LMIA exemption C42 are met, or they may wish to undertake an assessment to ensure the bona fides of the material documents provided in the C42 spousal open work permit application.

[C41] General eligibility for spouses or common-law partners of skilled workers

The applicant for a spousal open work permit must be in a genuine relationship with a principal foreign national who does not hold an open work permit issued under LMIA-exemption code C41 or C42 and meets all of the following:

• holds a valid work permit (employer-specific or open under a non-spousal category) or is authorized to work in Canada without a permit under the authority of section R186, except R186(w)
• is authorized to work in Canada for a period of at least 6 months after the spousal open work permit application is received
• is employed in one of the following :
  • a high-skilled occupation (NOC 0, A, or B)
  • any occupation classified as NOC 0, A, B, or C when accepted in one of the Atlantic Immigration Program streams
  • any occupation and holds a formal nomination pursuant to a federal-provincial-territorial (FPT) agreement concerning permanent residence
  • any occupation and holds a selection certificate for permanent residence as a skilled worker pursuant to the Canada-Quebec Accord
• is physically residing or plans to physically reside in Canada while employed
• is in a genuine relationship with the spouse or common-law partner

The principal foreign worker may be employed part-time for the spouse or common-law partner to qualify for this LMIA exemption. Although there is not a standard minimum of hours required, officers have to be satisfied the principal foreign national’s employment or funds will be sufficient to financially support themselves and their family members while they are in Canada.

Specific eligibility requirements for principal foreign national under different permanent residence programs

Spouses or common-law partners of Atlantic Immigration Program (AIP) work permit holders

The principal foreign national must be working in any occupation level in NOC 0, A, B or C, has a work permit issued under any category and approval under one of the Atlantic Immigration Program streams.

The principal foreign national’s work permit must be valid for 6 months after the spousal open work permit application is submitted. T he spousal open work permit should have a validity that matches the principal foreign national’s work permit or until the expiry of the spouse or common-law partner’s passport or travel document, whichever is earlier.

The spousal open work permit application may be submitted inside or outside of Canada. It may be submitted with or after the principal foreign national’s work permit application.

Spouses or common-law partners of Quebec selection certificate (CSQ) holders

If the principal foreign national was issued an employer-specific work permit as a CSQ holder [LMIA-exemption code A75 – Province of destination is Quebec], for any occupation skill level, a spousal open work permit may be approved.

The principal foreign national’s work permit must be valid for 6 months after the spousal open work permit application is submitted. The spousal open work permit should have a validity that matches the principal foreign national’s work permit, or until the expiry of the spouse or common-law partner’s passport or travel document, whichever is earlier.

The spousal open work permit application may be submitted inside or outside of Canada. It may be submitted with or after the principal foreign national’s work permit application.

Spouses or common-law partners of provincial nominees

If the principal foreign national is working at any occupation level, has a work permit issued under any category and has a formal nomination from a province other than Quebec.

The principal foreign national’s work permit must be valid for 6 months after the spousal open work permit application is submitted. The spousal open work permit should have a validity that matches the principal foreign national’s work permit or until the expiry of the spouse or common-law partner’s passport or travel document, whichever is earlier.

The spousal open work permit application may be submitted inside or outside of Canada. It may be submitted with or after the principal foreign nationals permit application.

Spouses or common-law partners of bridging open work permit (BOWP) holders

If the principal foreign national is an open work permit holder, the occupation skill level can not be determined solely by means of the work permit of the principal foreign national.

Important: Spouses or common-law partners of bridging open work permit holders must provide additional documentation as per the spouses of open work permit holders instruction in Documentary evidence.

If the principal foreign national has obtained a bridging open work permit (BOWP) [LMIA-exemption code A75 – Province of destination: all except Quebec), the following eligibility requirements apply:

• All principal foreign nationals’ work permits must be valid for 6 months or longer, regardless of permanent resident category.
• The principal foreign national must be in Canada, however the spouse or common-law partner may be inside or outside Canada.
• Applications (BOWP and C41 WP) may be submitted together if they are both in Canada, but the C41 WP cannot be issued before the BOWP. If the spouse or common-law partner is outside Canada, they must wait until the principal foreign national obtains their BOWP to apply for the spousal open work permit.
  • For spouses or common-law partners of federal skilled worker class (FSWC) applicants, the BOWP holder must be performing work that falls within NOC skill level 0, A or B.
  • For spouses or common-law partners of provincial nominee class (PNC) applicants, the spouse or common-law partner is eligible for an open work permit for the duration of the work permit held by the principal PNC applicant, irrespective of the skill level of the principal PNC applicant’s occupation.
  • For spouses or common-law partners of federal skilled trades class (FSTC) applicants, the BOWP holder must be performing work that is within one of the skilled trade occupations in NOC skill level B.
  • For spouses or common-law partners of Canadian experience class (CEC) applicants, the BOWP holder must be performing work that falls within NOC skill level 0, A or B.
  • For spouses or common-law partners of caregiver applicants (application for permanent residence under the caring for children class or caring for people with high medical needs class received before June 18, 2019), the BOWP holder must be performing work within one of the qualifying occupations in NOC skill level 0, A or B.
  • For spouses or common-law partners of Agri-Food Pilot (AFP) applicants, the BOWP holder must be performing work that is at a level that falls within NOC skill level 0, A or B.
  • For spouses or common-law partners of Quebec Skilled Worker (QSW) applicants, the spouse or common-law partner is eligible for an open work permit for the duration of the BOWP held by the principal QSW applicant, irrespective of the skill level of the principal QSW applicant’s occupation.

Spouses or common-law partners of open work permit holders other than BOWP

If the principal foreign national is the holder of an open work permit, except for an open permit issued under LMIA exemption category C41/C42, (for example, a post-graduation work permit or a working holiday work permit) and they are working in a NOC 0, A or B occupation, the spouse or common-law partner may apply for a spousal open work permit.

The spousal open work permit applicant will have to provide additional documentary evidence as per the instructions above.