Immigration Options for Entrepreneurs

Temporary Options

Individuals who seek to establish and develop a business in Canada have several options for obtaining a work permit, allowing them to temporarily live and work in the country. Temporary residence, through a work permit, is also a useful alternative for individuals who do not qualify for permanent resident status. It could allow a foreign national to establish and develop a company, while simultaneously gaining the necessary Canadian work experience or other qualifications necessary for a successful permanent resident application.

1) International Agreements

Canada has negotiated trade agreements with several countries, under which exist various avenues for obtaining a temporary work permit, including for certain professionals, traders, investors, and intra-company transfers. The investor category is one of the most frequently used options, and applies to individuals who have invested a significant amount of funds in a Canadian business, which they will then directly manage and oversee. These international investors may be eligible for a work permit of up to 1 year, with the possibility of renewal.

2) Intra-Company Transfer – Start-Up Option

If your company is looking to open an office in Canada you may be able to get a temporary work permit to manage the establishment and development of your company’s Canadian presence. The applicant must have been working with the non-Canadian company for at least 1 year in a role similar to the future Canadian position. Additionally, the relationship between the new Canadian office and the non-Canadian company must also be one that qualifies under the regulations. An intracompany work permit can last for up to 1 year, with conditional renewals. Any time spent outside of Canada while the work permit is active can be recovered and deducted from the permit’s time limit.

3) Owner-Operated Labour Market Impact Assessment (LMIA)

Most other work permits require a positive labour market impact assessment (a “LMIA”) from Social and Economic Development Canada. A LMIA usually requires a minimum 4 months of advertising for the vacant position, to ensure no other qualified Canadians are available to take the job. Applying for a LMIA as an owner-operator provides an exemption from the usual advertising requirements, and therefore a quicker route to obtaining a Canadian work permit. In order to qualify for the owner-operator advertising exemption, the applicant must have a controlling share in the business and intend to work in a high-level position. The applicant must also be able to demonstrate that:

  1.  there is no employee of the business who can terminate your employment (i.e. you have no manager or boss); and
  2. your temporary entry into Canada will result in the creation or retention of employment opportunities for Canadians or permanent residents, and/or there will be skills transfer to Canadians or permanent residents.

This work permit can be granted for a period of up to 2 years.

Permanent Options

If you seek to come to Canada and on a permanent basis, there are also several options available that may be of interest to business owners.

1) Express Entry

If certain qualifications are met, you may be able to apply for permanent resident status in Canada through the express entry system. One of the main qualifications is a satisfactory score on the Comprehensive Ranking System (“CSR”). The CSR system assesses each applicant based on:

  1. age,
  2. English or French language ability,
  3. education,
  4. work experience, and
  5. other factors that affect adaptability to Canada (e.g. attending a Canadian school, family in Canada, etc.)

If an applicant’s CSR assessment score is high enough, they could be offered an invitation to apply for permanent residency in Canada (an “ITA”). Ideally, once an application is submitted in response to an ITA, it will be processed in under 6 months.

Historically, ITAs have been issued approximately every two weeks, with the most recent minimum score of approximately 441. This minimum score set by the Minister of Immigration, according to the needs of the Canadian economy, meeting it is not a guarantee of a successful application.

2) Provincial Nominee Programs

Each Canadian province and most territories have immigration programs aimed at attracting entrepreneurs. Most provinces require a minimum personal net worth and a minimum investment in a local business (whether a new business or a purchased, existing one) and an initial business plan. Many provide a 1-year work permit, after which your business’ progress will be assessed against your initial business plan. If the business has fulfilled initial expectations, as set out in the business plan and the program’s requirements, you may be issued a certificate of nomination, which will be used to apply to the federal Express Entry program. The certificate will give you an automatic 600 points, which will be enough to be issued an ITA for Canadian permanent resident status.

3) Start-Up Visa Program

The Start-Up Visa Program is a third entry-way to permanent resident status in Canada for qualified entrepreneurs. The following is required to qualify for this program:

  1. a qualifying business, where:
    1. each applicant must holds a minimum of 10% or more of the corporation’s votingshares (maximum 5 applicants),
    2. the applicants and their supporting designated organization together hold more than 50% of the voting shares, and
    3. at the time that permanent residence is received:

      i. the applicant’s management of the company in Canada is ongoing and active,
      ii. an essential part of the business is conducted in Canada, and
      iii. the business is incorporated in Canada.

  2. proof that the business is supported by a designated organization; these include incubators or other business groups approved by the Government of Canada,
  3. sufficient ability in English or French, as shown by the applicant’s score on an approved language test, and
  4. a qualifying amount of settlement funds.

For more information on which immigration option is best for you and your business, or for assistance designing your longer-term immigration strategy, please contact Emily Lukaweski by phone at (416) 368-0600 or by e-mail at elukaweski@businesslawyers.com.   

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