Canada – Cap for International Student Applications; Digital Nomads Clarified

Provinces Will Issue Attestation Letters

IRCC will allocate a portion of the cap to each province and territory based on their respective population size.  Each province or territory will then distribute the allocation among the Designated Learning Institutions within that region through the issuance of attestation letters.  As of January 22, 2024, every study permit application submitted to IRCC will require an attestation letter from a province or territory.  The processing of study permit applications will be paused until March 31, 2024 – the deadline provided to provinces and territories to develop a process for issuing attestation letters.

Provinces and territories are expected to establish a process for issuing attestation letters to students by March 31, 2024.  IRCC is expected to release additional details as more information becomes available from each province.

Applications submitted on or after January 22, 2024, without an attestation letter will be considered incomplete and returned, unless the applicant is exempt from this requirement.  This means that unless a foreign national qualifies under one of the exceptions listed below, he/she must wait to submit the study permit application until the provinces and territories have established a process for issuing attestation letters.

Currently, Quebec is the only Canadian province that has a system in place as it issues Quebec Acceptance Certificates (CAQ) for foreign nationals seeking to study in Quebec.   

Exceptions to Obtaining Attestation Letters

The new requirements largely apply to new applicants who are pursuing post-secondary studies.  An international student will not require an attestation letter and may submit a study permit application if he/she is:

• a student applying to extend his/her study permit;
• a minor child applying to study in a primary or secondary school (Kindergarten to Grade 12); or
• a student applying for a Masters, PhD, or other post-graduate program.

Starting September 1, 2024, international students who begin a program of study that is part of a curriculum licensing arrangement will no longer qualify for a PGWP upon graduation.  Under curriculum licensing agreements, students physically attend a private college that has been licensed to deliver the curriculum of an associated public college.  IRCC has noted that these programs have less oversight than public colleges and act as a loophole for PGWP eligibility.  IRCC has not yet identified the specific schools that will be impacted by this new measure.

Graduates of master’s degree programs will soon be eligible to apply for a three-year PGWP.  Under the current rules, the length of a post-graduation work permit is based solely on the length of an individual’s program of study.  This limits the amount of time a graduate student has to obtain Canadian work experience and potentially transition to permanent residence.

Open Work Permits for Spouses of International Students

IRCC also announced that in the coming weeks, open work permits will only be available to spouses of international students enrolled in master’s and doctoral programs.  The spouses of international students in other levels of study, including undergraduate and college programs, will no longer be eligible for an open work permit.

IRCC Defines ‘Digital Nomad’

IRCC recently provided clarifications on the definition of a ‘digital nomad.’2  IRCC has defined digital nomad as a person who can perform his/her job remotely from anywhere in the world.  A Digital Nomad only needs visitor status to relocate to Canada for up to six months at a time while he/she performs his/her job remotely for a foreign employer.  There should be no nexus between his/her work and Canada – the person should not be serving or working with Canadian clients nor a local office in Canada.

A person may initially enter Canada as a Digital Nomad to work remotely, but he/she must seek a work permit if he/she needs to transfer to the Canadian entity.  If an employer intends to transition the employee to its Canadian entity, a work permit will be needed before starting such a transition.  Accompanying family members of Digital Nomads who intend to work or study in Canada should apply for a work permit or study permit.

Ruling for ‘Lost Canadians’

On December 19, 2023, the Ontario Superior Court of Justice decided in a landmark ruling, Bjorkquist et al. v. Attorney General of Canada, that the “second-generation cut-off” rule in section 3(3)(a) of the Citizenship Act is unconstitutional.

The second-generation cut-off rule prohibits foreign-born Canadians who acquired citizenship by birth from passing their citizenship to their children if their children are also born abroad.  In its recent decision, the Ontario Superior Court deemed this rule unconstitutional.  Justice Akbarali, the judge, wrote that the rule creates a distinction based on national origin, as it treats Canadians who became Canadians at birth because they were born in Canada differently from those Canadians who obtained their citizenship by descent on their birth outside of Canada.  The judge declared the provision to be of no force or effect, but suspended the declaration of invalidity for a period of six months to provide the federal government time to amend the Act.

The federal government has not yet identified how it will provide relief to second-generation individuals born abroad.  As noted in Bill S-245, which was introduced before the Bjorkquist decision, the Citizenship Act may be amended to introduce the ‘substantial connection’ test for second-generation citizenship, which may require applicants to prove their physical presence in Canada for a certain period.