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What Do Business Owners Need to Know About Operating in Canada?

Canada is a fantastic place to start a new business or invest in one. It offers a number of benefits, including:

  • Lower corporate taxes than many other countries, including the U.S.
  • Stable connections to the U.S. and the wider world, with 550 ports and more than a dozen international airports.
  • High quality of life — Canada ranked second (after Germany) on the 2021 Anholt-Ipsos Nation Brands Index. And research shows that people are up to 13% more productive when they’re happy.

However, there’s a common misconception that foreign nationals automatically qualify to become a permanent resident if they start a business in Canada or invest in one. That’s not the case: Canadian immigration programs for foreign business owners and investors require proof that applicants play an active part in the day-to-day running of the company.

First, business owners and investors from outside Canada need to obtain a work permit. Then, they can claim ‘job offer’ points on their express entry profile after working for their company for at least one year. As a result, they would be eligible to apply for permanent residence in Canada under one of the various Express Entry pathways.

As immigration lawyers in Toronto, the most common application types we prepare for business owners and investors are:

  • C11 Significant Benefits
  • Intra-Company Transfer (ICT)
  • CUSMA Investor/Trader
  • Provincial Nomination Programs for Entrepreneurs (available in Ontario, British Columbia, and Manitoba)

Below, we’ll take a close look at each type.

C11 Significant Benefits

Under the C11 Significant Benefits Pathway, entrepreneurs can apply for a permit to work for themselves or to operate their business in Canada. They need to demonstrate that being granted entry to Canada would bring significant benefits to the country (either economic, social, or cultural). They may also show that their entry would provide Canadian citizens and permanent residents with valuable work opportunities.

Key criteria for this application includes having majority ownership (at least 51%) of the business. Immigration, Refugees and Citizenship Canada (IRCC) would assess several points when evaluating applications, such as:

  • Does the applicant have relevant skills or employment history that improves the business’s viability?
  • Does the applicant have a business plan that shows they’ve taken clear steps to start their enterprise?

If granted entry, a business owner can qualify for permanent residency by gathering points on their profile (based on the national occupation code of the job offer or work permit). That would boost their overall cumulative ranking score and their chances of being invited to apply.

Intra-Company Transfer

Business owners with an established company overseas can set up a branch office in Canada and transfer as a manager or executive. Successful applicants will receive a temporary work permit, and family members may join them. To be eligible, foreign nationals must be an executive, senior manager, or have specialized knowledge.

Requirements for ICT applications include:

  • The foreign and Canadian entities must be related, such as an affiliate or a subsidiary.
  • The foreign entity should have the financial stability to support the Canadian company and its staff.
  • Realistic plans are in place to hire employees for the Canadian entity, primarily Canadian citizens or permanent residents.
  • Securing premises for the Canadian entity or planning to.

Foreign nationals can make an express entry profile after working for the Canadian entity for one year, then start claiming job-offer points.

Canada-United States-Mexico Agreement (CUSMA)

CUSMA superseded the North American Free Trade Agreement (NAFTA) in July 2020. This enables citizens of the U.S., Mexico, or Canada involved in certain professional activities to gain temporary entry. You can read more about CUSMA in our Work Permits Pursuant to International Free Trade Agreements post.

Some of the most important requirements for eligibility include:

  • The applicant has American or Mexican citizenship.
  • The enterprise has American or Mexican nationality.
  • Significant money has been invested into the business, or is actively being invested. No minimum dollar figure applies: an investment’s value is typically determined by a “proportionality test”. This weighs the figure against the amount usually considered necessary to establish a viable business of its type, or the enterprise’s overall value.
  • The applicant is looking for entry exclusively to grow the enterprise and direct it.
  • If the applicant is an employee of the business, they hold an executive or supervisory position requiring essential skills.
  • The applicant complies with existing measures that apply to foreign nationals seeking temporary entry.

Investors must have funds committed to the business to qualify, rather than simply intending to invest.

Provincial Entrepreneur Programs (PNP)

PNPs are for foreign nationals applying directly to their preferred province rather than IRCC. As a result, the relevant province is required to either approve or refuse an application. Provinces operating Entrepreneurial Streams have their own lists of requirements that applicants must meet. These typically relate to:

  • The number of jobs a business will create.
  • Minimum investment amounts.
  • Minimum net worths.

Foreign nationals must formally express their interest to the province, which will assign a score to them. Provinces conduct draws under Entrepreneur Streams and invite applicants at or above the cut-off score to submit their application. PNPs are fairly similar to C11 Significant benefits and ICT programs.

When a province approves someone into the program, they will sign a PNP agreement. They will receive a nomination certificate upon meeting all conditions stipulated in that agreement. Next, the individual will file their application for permanent residence directly to the relevant province.

Abramovich & Tchern helps clients complete applications for a number of Entrepreneur PNPs, including:

We’ll ensure you understand the requirements for your chosen PNP, then create a compelling application for you.

How to Make Your Application To Start or Invest in a Business in Canada

Applying for temporary entry into Canada is a complex, time-consuming process. It can be challenging, especially when you currently run a business or are in the process of launching one.

As experienced immigration lawyers, we’ve successfully advocated for companies and individuals from across the globe. Contact our team today to find out how we can help you bring your enterprise to Canada!

Comment on certain immigration and refugee statements made by Federal Conservative Party Leader, Mr. Erin O’Toole

Comment on certain immigration and refugee statements made by Federal Conservative Party Leader, Mr. Erin O’Toole

CTV National News recently invited A&T’s Lev Abramovich to briefly comment on certain immigration and refugee statements made by Federal Conservative Party Leader, Mr. Erin O’Toole.

On September 13, 2021, Mr. O’Toole, released a French-language video via Twitter promising to put a stop to “illegal” border crossings of asylum seekers at Roxham Road in Southern Quebec. In the video, Mr. O’Toole states that the Liberal Government has allowed thousands of people to cross the border illegally and created a system that is unjust for “regular immigrants” that follow rules and wait their turn.

>> Watch the video fragment of our comments on Twitter. <<

On CTV’s Truth Tracker with Richard Madan, Lev Abramovich fact-checked Mr. O’Toole’s statements. In this blog, I will provide more detailed analysis on what is happening at Roxham Road, and why Mr. O’Toole’s statements are both false and misleading.

  1. What is happening at Roxham Road?

In recent years, thousands of asylum seekers have entered Canada through an unofficial land crossing located at Roxham Road – a crossing point located between New York and Quebec. Most of the migrants crossing at Roxham Road were either previously residing in the United States or they were travelling through the United States in order to arrive to seek asylum in Canada.

To understand what is happening at Roxham Road from a legal perspective, it is necessary to understand the legal framework governing the matter at hand.

Canada and the United States are both signatories to the 1951 Convention relating to the Status of Refugees (the “1951 Refugee Convention”) – the cornerstone of international refugee law. As signatories of the Convention, both countries are amongst other things legally obligated:

  • to not obstruct entry to those individuals who arrive at their borders and seek protection; and
  • to ensure such individuals have their cases freely and fairly heard.

The other important piece of legislation governing this matter is the Safe Third Country Agreement – a bilateral agreement signed by the United Stated and Canada in December 2014 designed to “share” the respective countries duties under the UN Convention and to prevent “asylum shopping.” Under the Safe Third Country Agreement, Canada and the United States recognize each other as safe places to seek protection, which means the Safe Third Country Agreement requires asylum seekers to seek protection in the first safe country they land (unless they meet a set of certain exemptions[1]). However, the Safe Third Country Agreement applies and is only enforced at “ports of entry” which means Canada can turn back refugee claimants who arrive at the official ports of entry, on the basis the basis of them first arriving in the United States which is why asylum seekers often cross into Canada without going through an official port of entry.

There has been heated debate about the Safe Third Country Agreement with some taking the position that it should have never been entered into in the first place, while others defend the agreement and argue it should apply to both regular and irregular crossings.

The constitutionality of the Safe Third Country Agreement has been challenged in Federal Court since its introduction with the Safe Third Country Agreement being struck down on two occasions by the Federal Court only for the decisions to be overturned by the Federal Court of Appeal.

The latest installment of Safe Third Country Agreement litigation took place in 2020-21. In July 2020 Canada’s Federal Court ruled that the Safe Third Country Agreement violated the Canadian Charter of Rights and Freedoms as it exposed asylum seekers to “physical and psychological suffering” in unsafe detention facilities across the United States. The federal government appealed the judgment, and on April 15, 2021, the Federal Court of Appeal ruled in the government’s favour and upheld the constitutionality of the Safe Third Country Agreement.

  1. Analysis of Mr. O’Toole’s Statements

The 1951 Refugee Convention recognizes the fact that those fleeing persecution may use irregular or even illegal means (such as false identity documents) and states that refugee claimants are not to be penalized for doing so.

To protect Canada’s border security, while at the same time fulfilling Canada’s obligations under the 1951 Refugee Convention, Canada Border Services Agency (“CBSA”) created an in-take center at Roxham Road in Quebec, Canada to facilitate refugee claims made pursuant to irregular crossings, balancing Canada’s obligations under the 1951 Refugee Convention with the need to protect the integrity of our borders.

Given Canada’s obligations under the 1951 Convention, the crossings addressed by Mr. O’toole cannot be considered illegal as the individuals in question are crossing for the purposes of seeking refugee protection and present themselves to CBSA.

In addition, Mr. O’Toole erroneously conflates regular economic or family immigration streams with claims for protection. While Immigration Refugees Citizenship Canada (“IRCC”) is in fact dealing with significant backlogs across various temporary and permanent immigration steams, the refugee protection determination process is entirely separate and distinct. Refugee claims are considered by the Refugee Protection Division of the Immigration and Refugee Board as opposed to IRCC and the individuals presenting themselves to CBSA at Roxham Road are therefore not “jumping” any lines.

Moreover, upon entry into Canada (whether at Roxham Road or at regular Port of Entry), asylum seekers are screened for admissibility, and their cases are only referred to the refugee protection division if they qualify for consideration. If their case is referred, they are subject to a rigorous refugee determination process which includes a hearing to test the credibility of their claim. They are only granted protection if they meet the definition of a refugee under section 96 of Immigration and Refugee Protection Act (“IRPA”), or a person in need of protection under section 97 of IRPA. If a claim is denied, the asylum seeker has limited appeals rights with the CBSA, and the CBSA acts swiftly in removing failed asylum seekers from the country.

Mr. O’Toole’s statements with respect to the crossing being “illegal” as well as equating refugee claimants to economic or family class applicants are therefore false. In my view, Mr. O’Toole’s statements as well as his position with respect to Roxham Road and the Safe Third Country Agreement take away from an otherwise rather ambitious and comprehensive immigration platform presented by the Federal Conservatives.

The opinions expressed herein are solely those of the author and are not meant to express support for a political party or agenda.

[1]https://www.canada.ca/en/immigration-refugees-citizenship/corporate/publications-manuals/operational-bulletins-manuals/refugee-protection/canada/processing-claims-protection-safe-third-country-agreement.html