Business Migration

 

Owner Operator LMIA

The Owner Operator LMIA is one of the most useful tools for Business Immigrants who can meet the Express Entry requirements as it helps in improving Comprehensive Score Rating CRS by 200 points. This program is the only hope for those qualified and experienced applicants who are eligible to create Express Entry profile, but their CRS score is too low to beat the current threshold cut-off.

Work permits may be issued to foreign nationals( the applicant) whose proposed Canadian employer( The applicant himself) has obtained an opinion from Employment and Social Development Canada (“ESDC”), which ensures that the job offer( to the applicant only) is genuine; and would likely have a neutral or positive effect on the Canadian labour market.

There are a few things to note:

• Start-up issues: It may be difficult for a start-up business to qualify, as it would not be “actively engaged in the business”. It is possible to get Owner Operator LMIA for a start-up, but the clients should have made some investments in leasehold improvements or equipment and shows some operations before the application for LMIA is made.
• Business Purchases: It would thus be easier to purchase a business rather than start up a new Enterprise, as applicant could show that the business is running, and he is “actively engaged” in the business.
• Role of the Owner Operator prior to LMIA approval: There must be absolute clarity with respect to the Owner Operator’s role in the business. While one must be able to show that the employer company, which the Owner Operator wishes to purchase is “actively engaged in the business”, and after buying the business, it is necessary to show that the proposed Owner Operator is already involved in the business?
• Owner Operator’s future role: Applicants would need to show that they are needed in the business. If the business already has a manager, and the Officer may question the need for the owner operator to be in Canada unless we prove that the things the Canadian manager could do are limited and that the business needed to have an Owner Operator to really take overall responsibility.
• Ability to afford Owner Operator:Ensure that the company has sufficient financial resources to be able to hire and pay, the Owner Operator, especially if there is a salary commitment to owner operator.
• Compliance with Employment laws: Ensure that the business being purchased has been compliant insofar as per the recruiting and employment laws and it has not been “blacklist” by ESDC
• LMIA Exempt Work Permits for Start-ups: If the client really wished to start a particular business from scratch, it may be better to have him/her obtain a Work Permit as a Free Trade Investor or one of the LMIA Exempt categories ( under C10 or C11) first, and then apply for the Owner Operator LMIA after the business has been established and operating.

TFWP Owner Operator Guidelines

For the purposes of the TFWP, “Owner/Operators” are defined as foreign nationals who hold a share in a business located in Canada and are classified under NOC 0, or 00 occupation. Owner/Operators are not the same as self-employed individuals and are not required to be hands-on with the day to day operations of the company.

“LMIA exemptions are determined by CIC under C-10 or C11 where CIC may issue a work permit without an LMIA, if it is determined that the foreign national would create or maintain significant social, cultural or economic benefits and job opportunities for Canadians. ESDC Canada is required to assess all LMIA applications. Although an employer-employee relationship is generally required in order to provide an LMIA, there are certain situations, such as the owner/operators, where the principal owner would also serve as the worker.

An officer is to consider the following in deciding as to whether an offer of employment to a foreign national would have a neutral or positive effect on the Canadian Labour Market. Whether the employment of the foreign national will or is likely to result in direct job creation or job retention for Canadian citizens or permanent resident. ESDC officers must examine all the evidence put before them, then decide as to whether or not issuing the owner operator LMIA would have a neutral or positive effect on the Canadian labour market.

The holder of the largest share of the business is the “Principal Owner”. Where there are few equal shareholders, one of them can be designated as the “Principal Owner. Also no Advertising is required as this is noted in the “Variations to Minimum Advertising Requirements” on the ESDC website.

TFWP Owner Operator Guidelines

• Direct ownership vs Holding Companies: Based on recent guidance from ESDC, the Owner/Operator must own his or her share in the operating business directly. Business Immigrants who own shares in the operating company for voting rights only would not likely qualify.
• Licences and Registrations: Any licences or registrations that may be required to operate the business should be obtained or at least be in process at the time of the application.
• Location: The business location should be identified or at least secured at the time of the application (e.g. a lease for a property). This is particularly important for start-up businesses that may not be in operation at the time of the application. If there are multiple business locations that the applicant will work at, clearly indicate as such in the application.
• Forms: Although ESDC’s LMIA application forms were not designed for the Owner Operator LMIA, it is important to complete all fields of the forms. For fields that may not be applicable because of the claim for an Owner Operator LMIA, clearly state that the field is not applicable and, if necessary, explain why the field is not applicable.
• Supporting Business Documentation: Include evidence that the business can operate and is ready to hire Canadian citizens or permanent residents. This can include past financial statements, information from websites demonstrating the business’ past activities, the inclusion of public information about employees (e.g. employee pages from business websites), pictures of the business, etc.
• Job description for the Owner Operator: While the Bulletin states that Owner/Operators need not be involved in the hands-on operation of their business, it is always helpful to prepare the Business Immigrant with explaining what their role in the business will be crucial and very important.
• Know the Business: Ensure that the Business Immigrant is knowledgeable about the business being purchased prior to his or her interview with ESDC.
• Median Wages: Prepare the Business Immigrant for a possible request by ESDC to pay median wages. Some ESDC officers have insisted on seeing median wages paid, even though the Bulletin states this is not necessary for the Principal owner.
• Language: It is worthwhile to note that the Business Immigrants’ language ability is not crucial to the success of the LMIA. If the Business Immigrant cannot speak English fluently, ESDC has permitted the use of a translator. Having said that, the Business Immigrant should be prepared to work to improve their English in order comply with the terms of any transition plan or representation that permanent residence will be pursued.
• Conditional Purchase of a Business: For Owner Operator LMIAs ESDC has all right to question the eligibility of business purchases which is conditional and is subject to a work permit approval for the Business Immigrant. It remains to be seen if ESDC will develop a consistent policy regarding Owner Operator LMIA applications where a Business Immigrant’s business purchase is subject to work permit approval for the Business Immigrant. As a matter of speculation, one might consider whether proof of a significant and non-refundable deposit of funds for such a business purchase could be a beneficial factor to an Owner Operator LMIA applicant.
• Business Plan: There must be a clear and genuine business plan to be submitted with the application which can assist the ESDC officer in understanding the basic concept and operations of the business. The business plan should also clearly demonstrate the genuineness of the business as well as the employment of the Owner Operator and that, it is likely to have a positive or neutral effect on the Canadian labour market.

 

It remains to be seen if ESDC will develop a consistent policy regarding Owner Operator LMIA applications where a Business Immigrant’s business purchase is subject to work permit approval for the Business Immigrant. As a matter of speculation, one might consider whether proof of a significant and non-refundable deposit of funds for such a business purchase could be a beneficial factor to an Owner Operator LMIA applicant.

Remember that the ultimate goal in the application is to assist the ESDC officer in understanding the basic concept and operation of the business as possible to demonstrate the genuineness of the business and that the employment of the Owner Operator is likely to have a positive or neutral effect on the Canadian labour market.

Popular job sites are listed below:

• Workopolis
• Eluta
• Neuvoo
• Monster
• Glassdoor
• CareerBuilder
• Indeed
• Jobboom
• Simply Hired

Intra-Company Transferee (ICT) Program

The intra-company transferee program facilitates people to work in Canada for a temporary period. This program is designed for Canadian Business Immigration, allowing multinational companies with a branch, parent company, affiliate or subsidiary in Canada to temporarily transfer foreign workers.

The intra-company category permits international companies to temporarily transfer qualified employees to Canada for the purpose of improving management effectiveness, expanding Canadian exports, and enhancing competitiveness in overseas markets.

The entry of intra-company transferees is guided by the Immigration and Refugee Protection Regulations and the general provisions of this section, and is supplemented by provisions contained in international trade agreements for citizens of signatory countries.

• Qualified intra-company transferees require work permits and are exempted from the Labour Market Impact Assessment (LMIA) under paragraph R205(a) (exemption code C12) as they provide significant economic benefit to Canada through the transfer of their expertise to Canadian businesses. This applies to foreign nationals from any country, including under the General Agreement on Trade in Services (GATS).
• Paragraph R204(a) provides for LMIA exemption code T24 for qualified intra-company transferees who are citizens of a country that has signed a free trade agreement (FTA) with Canada, namely NAFTA (and similar FTAs), and supplements the Immigration and Refugee Protection Act general provisions.

Intra-company transferees may apply for work permits under the general provision if they

• are currently employed by a multi-national company and seeking entry to work in a parent, a subsidiary, a branch, or an affiliate of that enterprise;
• are transferring to an enterprise that has a qualifying relationship with the enterprise in which they are currently employed, and will be undertaking employment at a legitimate and continuing establishment of that company (where 18–24 months can be used as a reasonable minimum guideline);
• are being transferred to a position in an executive, senior managerial, or specialized knowledge capacity;
• have been employed continuously (via payroll or by contract directly with the company), by the company that plans to transfer them outside Canada in a similar full-time position (not accumulated part-time) for at least one year in the three-year period immediately preceding the date of initial application.
• are coming to Canada for a temporary period only;
• comply with all immigration requirements for temporary entry.

Requirements for the company

• Generally, the company must secure physical premises to house the Canadian operation, particularly in the case of specialized knowledge. However, in specific cases involving senior managers or executives, it would be acceptable that the address of the new start-up not yet be secured; for example, the company may use its counsel’s address until the executive can purchase or lease a premise.
• The company must furnish realistic plans to staff the new operation.
• The company must have the financial ability to commence business in Canada and compensate employees.
• When transferring executives or managers, the company must
  • demonstrate that it will be large enough to support executive or management function.
• When transferring a specialized knowledge worker, the company must
  • demonstrate that it is expected to be doing business;
  • ensure that work is guided and directed by management at the Canadian operation.

Duration of work permits

• Initial work permit: one year
• For renewals, evidence should be provided that
  • the Canadian and foreign companies still have a qualifying relationship;
  • the new office has engaged in the continuous provision of goods or services for the past year;
  • the new office has been staffed.

Documentation requirements

The following documentation is required:

• confirmation that the foreign national is currently employed by aninternational enterprise outside Canada, and seeking entry to work in a parent, subsidiary, branch, or affiliate of that enterprise in Canada;
• confirmation that the foreign national has been employed (via payroll or by contract) continuously (full-time, not accumulated part-time) by the enterprise outside Canada, in a similar full-time position, for at least one year within the three-year period immediately preceding the date of initial application;
• outline of the applicant’s position in an executive or managerial capacity or one involving specialized knowledge (i.e., position, title, place in the organization, job description);
• in the case of “specialized knowledge”, evidence that the person has such knowledge and that the position in Canada requires such knowledge;
• outline of the position in Canada (namely, position, title, place in the organization, job description);
• indication of intended duration of stay; and
• description of the relationship between the enterprise in Canada and the enterprise in the foreign country (the officer may request tangible proof to establish the relationship between the Canadian and foreign organization wishing to make the transfer).

For more information about the program, you are requested to take an appointment with ICCRC approved Immigration Consultant.