How to Restore Your Expired Temporary Resident Status
Timing is everything.
In Canada, the term “temporary resident” encompasses four subcategories: visitors (visitor visas), students (study permit), workers (work permit), and temporary resident permit (TRP) holders. The latter have special permission to enter Canada, even if they happen to be inadmissible.
Citizens of certain countries require temporary entry visas (TRV) to enter. Holding a work or study permit does not always permit entry, and if the person is from a visa-requiring country, they may also be required to apply for a TRV. It is often issued together with the work or study permit when a person applies for the very first time. However, not everyone needs a TRV, and exemptions may be issued depending on country of origin, type of document held, or purpose of entry. Additionally, visitors from certain countries may require an electronic travel authorization (eTA) to visit Canada. A complete list of countries can be found here. It clearly shows which countries require a visa or an eTA, along with exemptions.
A temporary resident visa (TRV) is an official counterfoil document issued by a visa office that is placed in a person’s passport to show they have met the requirements for admission to Canada as a temporary resident. However, holding a TRV does not guarantee entry to Canada. The TRV includes two dates: one is the date by which the person must arrive and the second is the TRV expiry. These dates have nothing whatsoever to do with legal “time” in Canada.
If a person has applied for a study, work, or temporary resident permit outside Canada, an introduction letter will be issued by the visa office that will be presented at the port of entry along with a valid passport or travel document and any other required documentation.
Entering Canada
It should again be noted that none of the above guarantees entry. It is up to the border officer at the port of entry to determine whether an individual has the ability and intention to leave Canada at the end of the authorized temporary stay and will not overstay their legal time in Canada.
The border officer considers several other factors when assessing a person for entry to Canada, from reasons for entering Canada, self-sustenance capabilities, ties to home country, previous immigration and travel history, and admissibility issues. These factors are often reviewed when an applicant first applies for a visitor, study, work, or temporary resident permit or visa, but the same reasons will also be revisited by the port of entry officer, since they have the final decision upon entry. It is very important to ensure that a person entering Canada has the proper documentation and that they are properly prepared.
An officer will also assess the notion of dual intent. For instance, a person who intends to apply for permanent residence may still be allowed to enter Canada on a temporary basis if the officer is convinced that they would leave Canada by the end of their authorized stay and that they meet all other requirements upon entry.
The length typically allowed for visitors entering Canada is six months, but in some circumstances the authorized period of stay can extend beyond this. The authorized period of stay for students and workers is subject to study or work length and program requirements.
The port of entry officer will print the study, work, or temporary resident permit based on information from the introductory letter and from the shared computer notes of the original temporary resident application. Visitor records are not usually issued at the port of entry, but a person may request one. Border officers do not always provide entry stamps because most passports are now electronically scanned, but an entry stamp and/or a visitor record can also be requested.
As stated, if there is no stamp upon entry, and the time allowed “in” is up to six months, then one would count six months from the date of entry to Canada. This is “time” in Canada, and it is separate from dates on the actual counterfoil; a person must remain in Canada in the legal sense. When entering with a temporary document, the time in Canada is called temporary status.
Extension of Temporary Status
The application to extend the period for temporary status must be filed before the expiry of the authorized stay date. The applicant’s temporary status will then be carried forward until a final decision of the extension application has been made (implied status). Here is a brief example:
- A person has applied for a multiple entry TRV to visit Canada, which is valid from July 1, 2016, to July 1, 2018. They arrive for a short visit in 2016 and stay for only four weeks. They return to Canada again on October 10, 2017, and are given six months’ status in Canada (until April 10, 2018). Note that status in Canada is valid until April 2018, yet their TRV remains valid until July 1, 2018. (The TRV is valid for the time of “entering” Canada, but has nothing to do with status in Canada). It is now May 1, 2018, and the person is out of status – it expired on April 10, 2018. They must now apply for an extension of their legal status before April 10, 2018 (or they can exit Canada and re-enter using the TRV that is valid until July 1, 2018). If they apply for their extension on April 9, 2018, they have implied status until a decision is rendered.
In the case of workers and students, temporary resident status can also be lost if they do not comply with the initial conditions imposed on them. Workers and students would first have to file an application to change the terms and conditions that alter the initial conditions to avoid any non-compliance with the legislation. A good example is a person who has a two-year study permit but does not go to school at all during that two-year period, in which case they have not complied with the original terms and conditions.
But what if a person fails to file an application for temporary status extension or lost temporary status in time, due to non-compliance with an imposed condition? For such a scenario, immigration legislation provides a grace period of 90 days to allow an applicant to restore temporary status, but this is subject to preconditions and does not apply to each applicant.
Preconditions for Restoring Temporary Status
First, an application to restore temporary status can only be done inside Canada. Leaving Canada will trigger the need for an entirely new application before or upon entry.
If an applicant applies for extension after their authorized stay has expired, but still within the 90 days, then Immigration, Refugees and Citizenship Canada (IRCC) will notify them that they must apply for restoration, and the 90-day period will start from the day the notification was sent — which is a very fair approach.
A couple of useful examples:
- A study permit expires on June 1, 2018. The person realizes that they forgot to apply for an extension. They may apply for restoration of status of up to 90 days from June 1, 2018, and they must meet the requirements for restoration and the extension (of study permit).
- An open work permit expires on June 1, 2018. A request for an extension is submitted on February 1, 2018, but is refused on June 10, 2018. The person was on “implied status” from June 1 to June 10. Now the work permit extension is refused. The person is advised that they have 90 days to restore status and applies within 90 days from June 10, 2018. This time, they have proper documentation, fees, and reasoning for the restoration and extension.
The restoration application will be considered (section 182.1 IRPR) if the applicant meets the requirements of the initial stay (section 179 IRPR), is not subject to a minister’s declaration disallowing temporary residence (section 22.1 [1] IRPA), and if the reasons for failing to comply with the Regulations were as such (section 185a, b [I to iii] and c):
- Stayed longer than the period of authorized stay
- Workers: conditions on type of work, employer, or location of work were not fulfilled
- Students: conditions on type of studies, educational institution, location, and times/periods of study were not fulfilled
As a side note, a student does not have to file an application to change the terms and conditions if the new institution is a Designated Learning Institution (or DLI). The student would simply have to inform and update the immigration department.
To determine whether an applicant still meets the initial requirements, an officer would consider the following factors:
- Has applied in accordance with legislation and meets the requirements
- Will leave at the end of the authorized stay
- Holds a valid passport
- Is not inadmissible
- Performed medical examination if required by legislation
In his/her consideration of whether the applicant might leave Canada, the officer considers (among other factors) ties to home country, purpose of visit, ties to Canada, means for self-sustenance, ability to leave Canada, former Canadian application refusals, and criminal or medical inadmissibility; I have noted these factors previously.
Application Processing
A restoration application can be filed online or as a paper application. An online application is usually faster, which might be a decisive factor for some depending on personal circumstances.
Currently, the restoration fee is in addition to the work permit or study permit fee, but it replaces the visitor visa fee.
Restoration is a feature that allows the applicant flexibility instead of the otherwise rigorous, unfair approach. In fact, restoration is another great example of Canada’s immigration legislation tradition of taking the “human factor” into consideration.
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