Moving to Canada as a foreign national is never an easy process, but as one of my recent client cases demonstrates, with patience and perseverance, the Canadian dream can come true.
In the winter of 2020, our firm was approached by the owner of a successful office furniture business in India, who was looking to move to Canada and open a similar business through a work permit.
Applying as an Owner/Operator
Our client applied for a labour market impact assessment under Employment and Social Development Canada’s owner/operator category. Under this fantastic, but no longer functioning program, he was required to be a majority owner of the Canadian company, have sufficient funds to operate the business and create jobs and hire Canadians.
Owner/Operator LMIA applications have never been easy, particularly for startups that had to demonstrate that they were in the process of establishing the business in Canada and have taken substantive steps in getting the business off the ground.
Our client had to register the business, find space, prepare an inventory and hire staff — in addition to documenting that he had the funds to start and continue operating the business.
An additional complication at the time was the pandemic, which resulted in headaches and delays for many businesses. We were determined to prove our client’s business was viable and providing a service that would create a positive impact on the Canadian economy during such an unstable time.
After multiple follow-up calls with the LMIA Officer and some tough negotiations, in November 2020, our client finally received a positive decision on his Owner/Operator LMIA decision in a 00 NOC position. With the positive LMIA in hand, we were able to apply for his work permit and submitted his application to the IRCC New Delhi office the following month.
Pushing the process along
At the time of submitting our client’s work permit application, IRCC’s posted processing time for work permits being adjudicated in India showed that it should have taken up to three months, but the file seemed to be stalled. In the summer of 2021, six months after applying, we requested the global case management system (GCMS) notes through an access-to-information request (ATIP). The process is available to those who have received no response to their application.
The notes showed that the officer referred to programs that were not part of the application and that he ultimately refused the application. But a refusal letter was never received by our client. There was also no indication of a refusal on the online portal.
Supplemental submission
Having not received a final decision, we took the opportunity to submit a supplemental submission based on the GCMS notes we had received from the ATIP request, including updated financial and company documents. Months later, and almost a year after filing a work permit application, a refusal letter finally arrived.
The foreign national, meanwhile, had been investing money into the company, employing workers and inventory was starting to arrive. But he couldn’t come to Canada as a worker without a work permit. Instead, he had to make the trip as a visitor several times and at considerable expense.
Judicial review
Our client clung firmly to his Canadian dream as we turned to the litigation side of our legal team for support.
We filed an application for leave for a judicial review, asking the Federal Court to intervene. In March 2022, after perfecting the matter by filing the Applicant’s Record for our client, IRCC agreed to settle the case by remitting it to a new Visa Officer for review and redetermination. This ultimately signaled that the reasoning applied previously was erroneous and, in practical terms, there were sufficient grounds to warrant a positive decision.
Three months later, the application for the work permit was finally approved. As an executive of the company with a work permit supported by a positive LMIA in a 00 NOC, he was able to claim 200 points on his Express Entry profile, which represents significant progress on his path to immigration.
Permanent residency
The next step was to update his Express Entry profile to reflect his work permit and update his points. In September 2022, he was invited to apply for permanent residency, which was exactly what he wanted.
This past December 2022, we filed his complete application for permanent residence under the Federal Skilled Worker program. Just two months later, his application for permanent residence was approved.
Our client’s immigration case was successful because we created a solution that was tailored to his unique circumstances. It worked because we took the time to understand his situation and come up with a plan that was just right for him. It was not an easy journey, and we were met with several roadblocks, but we made sure to be there for our client each step of the way, as immigration is rarely a linear process.
If you are a foreign national looking to move to Canada and would like to explore your options, feel free to contact one of our lawyers for more information.
