carvajal july 2018 business immigrant slides · 2018-08-01 4 ict -advantages • relatively quick...

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Additional 2018 CPDS

Andrew Carvajal, LL.B / B.C.L., M.A., B.A.

Immigration Lawyer and Instructor

RCICCPD.ca

by Full Skills Exam Prep

Your CPD Instructor

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A Little About Me

• Toronto immigration and tribunal lawyer• Partner, Desloges Law Group• [email protected]• Twitter: @CarvajalLaw• LinkedIn: ca.linkedin.com/in/carvajalandrew• Personal site: www.carvajal.ca

Lesson Goals

• Initial client assessment• Intra-Company Transfers (ICTs)• Treaty investors• Owner/Operator LMIA• Federal programs for PR• Provincial programs for PR• The importance of the right business plan• Ethical considerations• Q&A

The Initial Client Assessment

• Client’s goals: temporary vs. permanent residence • Rule out eligibility for Federal/Provincial skilled

labour program• Simpler application

• Net worth• Available funds for investment• Managerial/business experience

• Percentage of ownership in current/past businesses

• Plan to open affiliate of foreign company in Canada? • Plan to set up new business or acquire existing one?

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The Initial Client Assessment

• English/French skills• Education• Citizenship(s)• Status in country of residence• Immigration history

• Prior trips to Canada• Family composition• Potential inadmissibilities

Intra-Company Transfers

Guidelines and PDIs

• R205(a) – C12: General ICT• https://www.canada.ca/en/immigration-refugees-

citizenship/corporate/publications-manuals/operational-bulletins-manuals/temporary-residents/foreign-workers/exemption-codes/intra-company-transferees.html

• R204(a) – T24: FTA ICTs• https://www.canada.ca/en/immigration-refugees-

citizenship/corporate/publications-manuals/operational-bulletins-manuals/temporary-residents/foreign-workers/international-free-trade-agreements.html

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ICT - Advantages

• Relatively quick application• No minimum investment amount

• But must make sense given business plan

• Available for start-ups• Available to any nationality

• Can be done through FTA or C12• Available for variety of positions

ICT - Disadvantages

• Requires existing foreign company • Must have a relationship with Canadian

company• Foreign company must continue to operate

• Transferee must have employee relationship with foreign company and Canadian company• Not best model for tax saving purposes

• Not a PR program, but possibility to transition later

ICTs – Eligible Businesses

• Business enterprise means any entity constituted or organized under applicable law• Could be privately or government owned• Corporation, trust, partnership, sole

proprietorship, joint venture or other association

• Includes religious, charitable or other non-profit organizations legally constituted

• Both the Canadian and foreign entities must be legal entities

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Qualifying Relationship – CAD and Foreign Company

• FN must be transferring to an enterprise that has a qualifying relationship with the enterprise in which they are currently employed

• Qualifying relationships• Parent • Subsidiary• Branch• Affiliate

• Both the Canadian and foreign companies must be, or will be, doing business


• Doing business means regularly, systematically, and continuously providing goods/services by a parent, branch, subsidiary, or affiliate in Canada and the foreign country• Does not include the mere presence of an

agent or office in Canada. E.g. office with no employees/operations

• Both Canadian and foreign branches must be doing business for the duration of the FN in Canada

• FN must be able to transfer back to foreign company at the end of the assignment


• Parent • Firm, corporation or other legal entity which has subsidiaries

• Subsidiary• Firm, corporation, or other legal entity of which a parent owns

• Directly or indirectly, half or more than half of the entity and controls the entity; or

• Directly or indirectly, 50% of a 50-50 joint venture and has equal control and veto power over the entity; OR

• Directly or indirectly, less than half of the entity, but, in fact, controls the entity• Branch

• Operating division or office of the same organization housed in a different location• Affiliate

• One of two subsidiaries, both of which are owned and controlled by the same parent or individual; OR

• One of two legal entities, owned and controlled by the same group of individuals, each individual owning and controlling approximately the same share or proportion of each company

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Qualifying Relationship – Transferee and Foreign Co.

• FN must be • Currently employed by foreign

company; AND• Have been employed (via payroll or by

contract), in a similar position,continuously, full-time and for at least 1 year within the last 3 years prior to initial application

Qualifying Relationship – Transferee and Foreign Co.

• In the context of a recent merger or acquisition no requirement that the FN has worked for same company abroad and in Canada but for company that has assumed the interests and obligations, assets and liabilities of the original owner and continues to operate the same type of business as the original owner

• FN must be employed by Canadian company in executive, senior managerial, or specialized knowledge capacity

• 18–24 months used as a reasonable minimum guideline

• While full-time employment in Canada anticipated, no requirement that FN perform full-time service in Canada• E.g. an executive can divide working

hours between offices in Canada and foreign company

Qualifying Relationship – Transferee and CAD Co.

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Qualifying Positions

• Executives (NOC 00)• Direct the management of the

organization or a major component or function of the organization

• Establish goals and policies• Exercise wide latitude in discretionary

decision-making• Receive only general supervision or

direction from higher level executives, BOD or shareholders


• Senior Managers (NOC 0 or 00)• Manage the organization, a department,

subdivision, function, or component of the organization

• Supervise and control the work of• Other managers or supervisors• Professional employees, or• Manage an essential function within the

organization, or a department or subdivision • Have the authority to hire and fire, or recommend

these and other personnel actions• Exercise discretion in day-to-day operations


• Functional Managers (NOC 0 or 00)• Manage an essential function in the company but do not

necessarily manage staff• Essential function generally means a function that is

indispensable or important to achieving the organization’s goals

• Must operate at a senior level within the organization or within the function managed, and have discretion over day-to-day operations

• Junior/middle management and supervisors excluded • As a result

• NOCs 0013 to 0016 should be included• NOC groups 01 to 09 may be included depending on

responsibility of the position

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• Specialized Knowledge• High standard; more complex applications• Must demonstrate on a balance of probabilities

that FN has high degree of• Knowledge at an advanced level of expertise;

AND• Proprietary knowledge of the company’s

product, service, research, equipment, techniques or management

• FN must be paid median wage for position in subject location

• Review PDIs carefully

Start-Ups

• FN seeking entry to open new office on behalf of foreign enterprise may qualify for ICT• Must show that enterprise in Canada is expected to support a managerial or executive

position or, in the case of specialized knowledge, is expected to be doing business• Factors to consider

• Ownership or control of the new enterprise• Secured premises• Investment commitment and financial ability to support the new business • Organizational structure and size of operation to support transferee’s position • Goods/services to be provided• Business plan and viability of foreign operation

• See • https://www.canada.ca/en/immigration-refugees-citizenship/corporate/publications-

manuals/operational-bulletins-manuals/temporary-residents/foreign-workers/exemption-codes/intra-company-transferees/canadian-interests-significant-benefit-qualifying-relationship-between-employer-foreign.html

• https://www.canada.ca/en/immigration-refugees-citizenship/corporate/publications-manuals/operational-bulletins-manuals/temporary-residents/foreign-workers/exemption-codes/intra-company-transferees/canadian-interests-significant-benefit-general-requirements-r205-exemption-code-c12.html

ICTs under Treaties (T24) – NAFTA/Chile

• Only applies to citizens of FTA countries• Manual provides that there is no

automatic refusal because FN was part-time at foreign company

• Eligible positions in Canada are executive, managerial capacity

broader), or specialized knowledge

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Colombia/Peru

• Applies to citizens/PRs of FTA countries• FN must be employed by foreign company for 6

months (in last 3 years) prior to transfer – not 12 months

• Transferees include category of management trainee on professional development

• Employee with post-secondary degree on temporary work assignment to broaden knowledge and experience in preparation for a senior leadership position

Korea

• Only applies to citizens of FTA countries• Transferees include category of

management trainee on professional

development

• No requirement for median wage for specialized knowledge position• However, wage remains important

indicator of specialized knowledge

CETA – Intra-Corporate Transfers

• FNs could have been employed or been partners of foreign enterprise for 12 months prior to transfer

• Eligible positions: senior personnel, specialists or graduate trainees

• Senior personnel assessed as executives under NAFTA• Specialists assessed as specialized knowledge under

NAFTA• Graduate trainees must

• Possess university degree• Be temporarily transferred to Canada for career

development or obtain training in business techniques/methods

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WPs Maximum Durations

• Executive/managerial – 7 years• 4.5 years under CETA

• Specialized knowledge – 5 years• 4.5 years under CETA

• Management trainees (Korea) – 3 years • Graduate trainees (CETA) – 1 year

Breaks and Recaptured Time

• Once max ICT WP duration is reached, ICT available again once FN has assignment with foreign branch for at least 12 months

• Normally, duration of WP will be used to calculate ICT cap• However, documented time spent not working

(either inside or outside Canada) during duration of WP can be “recaptured” to allow FN full 5 or 7 years of physical presence in Canada

• E.g. period of work at foreign office; child leave

WP Application Particulars

• Place of application• Outside Canada for non-visa exempt

countries• Upon entry for visa-exempt countries

• Highly discouraged in situation of start-up ICT

• Within Canada under R199 (where applicable)

• NOC 0 and A occupations “eligible” for Global Skills Strategy processing standards – 14 days

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WP Cover Letter/Submissions

• GSS processing (likely applicable)• Client, employee and position identifiers and subject line• Brief summary• Employer

• Brief description• Ownership structure• Qualifying relationship between foreign co. and Canadian co.

• Employee• Education/qualifications• Work experience – involvement with foreign co.

• Position• Duties, hours, salary• Nature of transfer and justification

WP Cover Letter/Submissions

• Summary of business plan (if new business)• Company location• Anticipated growth• Revenue goals• Anticipated job creation

• Ties to home country• Provide necessary explanations

• ‘Yes’ answers to statutory questions – e.g. visa refusals

• Documents not available• Prior applications

• Itemized list of enclosed documents

Transition to PR

• Following one year of full-time work in Canada eligible for offer of arranged employment • Extra 50 or 200 CRS points depending on

NOC• If FN owns 50%+ Canadian employer,

experience will not count as Canadian experience for CEC or EE points

• Possible employer-driven PNP options depending on employer requirements• Most employer-driven PNPs not available for

employees with more than 10% ownership

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Treaty Investors

Guidelines and PDIs

• R204(a) – T22: see NAFTA PDIs• https://www.canada.ca/en/immigration-refugees-

citizenship/corporate/publications-manuals/operational-bulletins-manuals/temporary-residents/foreign-workers/international-free-trade-agreements/north-american.html

• Chile, Peru, Colombia and Korea FTAs follow NAFTA guidelines

• R204(a) – T46: CETA• https://www.canada.ca/en/immigration-refugees-

citizenship/corporate/publications-manuals/operational-bulletins-manuals/temporary-residents/foreign-workers/international-free-trade-agreements/canada-eu/investors.html

Treaty Investors – Advantages

• Low investment amount• None is prescribed in the treaties but

general rule of $80,000 to $100,000 min

• Available for start-ups• No need to maintain operation of foreign

enterprise

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Treaty Investors - Disadvantages

• Limited to certain nationalities • Investment must normally be of a corporate nature• Investor must be majority owner or own controlling

interest on the business• Option to bring employee in executive or

supervisory position to manage investment • Investment is expected to be substantial enough to

benefit Canadian economy, not just provide living for applicant


Treaty Investors – Generalities

• Investing enterprise must have nationality of treaty country (e.g. properly registered in the US, Mexico, Chile, Korea, Peru, Colombia)

• Enterprise must be constituted or organized under applicable law and can include a corporation, trust, partnership, sole proprietorship, joint venture or other association

• Enterprise must be a real and active undertaking which operates to produce some service or good for profit

• At least 50% of the entity established in Canada must be directly owned by individual or corporate person with nationality of treaty country

• The place of incorporation of an enterprise is not an indicator of nationality Nationality is indicated by ownership

Treaty Investors – Investment

• A substantial investment must have been made OR is actively being made• “Investment” involves placing funds or other capital assets at risk in the hope of

generating a profit or a return• Can’t be a non-for-profit operation

• No minimum dollar figure established for meeting the requirement of “substantial” investment

• Experience dictates that less than $80,000-$100,000 may not be sufficient• Substantiality is normally determined by using a proportionality test in which the

amount invested is weighed against one of the following factors• Total value of the particular enterprise in question; OR• Amount normally considered necessary to establish a viable enterprise of the

nature contemplated• Investment must be significantly proportional to the total investment

• Only the amount already invested or irrevocably committed for investment can be considered in determining substantiality

• Objective of investor status is to promote productive investment in Canada• Not applicable if the investment, even if substantial, will return only enough

income to provide a livelihood for the applicant and family

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Investors – Foreign National

• Investor must have nationality of the treaty country

• Or PR in the case of Peru and Colombia• An investor seeks temporary entry solely to develop and direct the operations of

an enterprise in which the applicant has invested, or is actively in the process of investing, a substantial amount of capital

• “Develop and direct“ means that the applicant should have controlling interest in the enterprise (more than 50%)• Could be special cases where person has effective control even if less

ownership; joint ventures are also accepted • If applicant is in the process of investing, mere intent to invest or prospective

investment arrangements will not suffice• Must be close to the start of actual business operations, not merely in the

stage of signing contracts or scouting for locations and property• Investment funds must be irrevocably committed to the business

• Applicant must demonstrate prior or present possession and control of the funds/assets invested or to be invested

Investors – Bringing Employee under Investor Status

• Nationality requirement • Prospective Canadian employer must be a citizen of the treaty country who

is maintaining investor status in Canada; or• Prospective employer is a corporation or other business organization, where

the majority ownership is be held by citizens of the treaty country• If majority owner(s) not residing in treaty country, must be maintaining

investor status in Canada• Citizen of treaty country who is also a Canadian PR does not qualify to bring

employee under investor status• Employee criteria

• Role must be executive, managerial or supervisory directing, controlling and guiding the operation

• OR employee who possesses essential skills that are vital to the effectiveness of the firm’s Canadian operations over and above qualifications required of an ordinary skilled worker

WP Applications Particulars

• Due to complexity of application, application should be done at visa office prior to coming to Canada rather than POE (if FN is allowed to apply for WP at POE)• OR within Canada under R199 (where applicable)

• Duration of WP• Initial WP can have a maximum duration of 1 year• Extensions should be granted for a duration of up to 2 years

provided that all requirements described above are continued to be met

• Additional form to submit with application• https://www.canada.ca/content/dam/ircc/migration/ircc/englis

h/pdf/kits/forms/imm5321b.pdf• NOC 0 and A occupations “eligible” for Global Skills Strategy

processing standards – 14 days

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Investors under CETA

• Investor WP (T46) follows similar rules and principles as NAFTA• Provisions apply to FNs who

• Are the investor OR• Will establish, develop, or administer the operation of an

investment in a capacity that is supervisory or executive OR• Are employed by an enterprise that has committed or is in the

process of committing a substantial amount of capital• One year WP with discretionary extensions

• Business visitors for investment purposes

• New with CETA• Employee in a managerial or specialist position who is responsible

for setting up an enterprise but does not engage in direct transactions with the general public and will not receive direct or indirect remuneration from a Canadian source

• As other BVs under CETA, maximum stay is 90 days in 6 month period (unless eligible for entry under R186(a) and R187

Transition to PR

• Following one year of full-time employment in Canada eligible for offer of arranged employment

• Extra 50 or 200 CRS points depending on NOC• Will only apply to those who come as employees

of company constituted in Canada• If FN owns 50%+ Canadian employer, experience

will not count as Canadian experience for CEC or EE points

• Possible employer-driven PNP options depending on employer requirements• Most employer-driven PNPs not available for

employees with more than 10% ownership

Owner/Operator LMIA

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O/O LMIA - Advantages

• No minimum investment amount• But must make sense given business

plan• Available to any nationality • No requirement for pre-existing foreign

enterprise• No need to maintain operation of foreign

enterprise

O/O LMIA - Disadvantages

• Practically, not an option for start-up• Requires existing Canadian company with

adequate financial performance and need for new owner/operator

• 50%+1 upfront investment is risky without guarantee of success

• Not best model for tax saving purposes • Must have employee relationship with Canadian

company• Must own company directly


LMIAs Generally

• Permission to hire a TFW issued to employers who in most cases have demonstrated that they cannot find qualified employees amongst the pool of Canadian citizens/PRs• O/O LMIA exempt from recruitment

• LMIA WP will be employer-specific • R200(5) – Genuineness factors

• Is the employer actively engaged in the business in respect of which the offer is made?

• Is the offer consistent with reasonable employment needs of the employer?

• Are the terms of the offer such that the employer is reasonably able to fulfil?

• Past compliance of the employer with federal or provincial employment laws

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O/O LMIA Advertising Variation

• https://www.canada.ca/en/employment-social-development/services/foreign-workers/variations.html

• These positions are for business owners only. They are not intended for individuals receiving shares as part of a compensation package

• To qualify, FNs must demonstrate prior to submitting their application, and for the duration of their employment in Canada, that• They have controlling interest in the business

• By being the sole proprietor, OR• By being a majority shareholder (hold a minimum of 50.1% of the

shares), OR• By providing an official document to confirm that one shareholder

has controlling interest• They cannot be dismissed

• Variation: no advertisement or recruitment required• Prior language of this variation provided that entry of FN should result in

creation or retention of opportunities for Canadians and/or skills transfer • Arguably, still important

Client Checklist

• Tend to request more documents than required to help understand the business and prepare application• Some documents should be reviewed prior to execution to make

sure language is consistent with LMIA standards (e.g. job offer, agreement of purchase and sale)

• Registration documents • Articles of incorporation/amalgamation, Master Business Licence,

intra-provincial registration, etc.• Provincial/municipal business license (If applicable)• Documents evidencing purchase of business and new ownership

• Shareholders’ agreement• Agreement of purchase and sale• Share Certificate• Central Securities Register

• Provincial/territorial workplace safety and insurance (if applicable)• Collective Bargaining Agreement (if applicable)

Client Checklist

• Canada Revenue Agency (CRA) Documentation

• T2 Schedule 100 and Schedule 125 for last 2 tax years

• PD7A Statement of Account for Current Source Deductions for 12-month period preceding application

• T4 General Summary of Remuneration Paid, most current year ending

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Client Checklist

• Employment offer OR contract • Title of position • Anticipated start date and duration • Hours per week• Salary • Benefits• Main description of duties • Other provisions the company uses in their employment letters and

offers• Reference to the fact that O/O employee cannot be dismissed

• Employee’s bio page from passport• Employee’s CV• Employee’s provincial certification (where necessary) • Business plan

• Provide substantial input during preparation

O/O LMIA Specifics

• Can apply under High-wage LMIA or LMIA supporting PR

• High-wage application must include Transition Plan

• Low-wage LMIA unlikely for position of this nature

• Business plan practically mandatory

• Must shows how the O/O will fund and grow the business, role of O/O and how the O/O will maintain or create jobs

• Amongst other elements, financial projections and timeline of events

• O/O roles requires active management of the business not passive investment

• Ownership must be direct not through holding company

• FN must be direct shareholder to be considered O/O

O/O LMIA Specifics

• FN’s position should correspond to credentials, qualifications and experience

• R200(3): An officer shall not issue a work permit to a FN if there are reasonable grounds to believe that the FN is unable to perform the work sought

• Must possess sufficient English/French level to operate business

• Per ESDC internal guidelines, the wage of principal owner does not need to match prevailing wage

• BUT, company should be financially able to pay O/O salary and any projected increase in staff

• Wages significantly lower than median can call into question genuineness of job offer and financial viability of business

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Start-Ups

• Although possible “in theory”, unlikely in reality• New businesses call into question whether employer

is actively engaged in the business in respect of which the offer is made (R200(5))

• ESDC internal guidelines – officers will consider• Preparation made towards opening of business• Soundness of business plan• Plan to hire Canadians in reasonably short time

• Despite these guidelines, not a recommended strategy • If client is a start-up, ensure client is aware of

likelihood of negative decision

Conditional/Contingent Purchase

• Better to avoid them• Will need to be worded very carefully in

purchase agreement• Have money held in escrow by lawyer

pending LMIA decision• ESDC internal guidelines – officers will consider

• How far along are the two parties towards completion of the transaction• Demonstrate genuine intention to

sell/purchase business and reasonable efforts towards this goal

• Soundness of business plan

LMIA Cover Letter/Submissions

• Client, employee and position identifiers and subject line• Specify O/O stream• Brief summary• Employer

• Brief description• Ownership structure

• Purchase by O/O (if applicable)• Position

• O/O duties, hours, salary• Replacement of prior operator• Justification for required skills/experience

• Employee• Education/qualifications • Work experience• How she/he meets position requirements • Ownership

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• O/O advertising variation• Application to particular case

• Benefits of hiring TFW • Transition Plan

• Emphasize employer’s expansion plans, unique industry

• Projected financial performance• Management transition• Training plan• Maintain/increase employment of Canadians

• Summary of business plan


• Provide necessary explanations

• Documents not available

• Compliance issues• Refused applications

• Prior applications• Itemized list of enclosed documents

Client Instructions Following Submissions

• Enclose full application and advise client to review carefully

• Advise on timing of call/contact with ESDC/SC officer

• Will have better idea once LMIA fee is charged• Check email provided regularly (including spam) and

voicemail

• Given nature of application, representative usually on call

• Usually officers will schedule call in advance• Let client answer non-technical questions

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Client Instructions Following Submissions

• Confirm employer paid for application and all recruitment costs• Anticipated questions

• Overview of company • Nature of business and ownership structure • Expansion plans, number of employees, layoffs • Current management and transition plan

• Position (summarize in email – stick to LMIA script)• If LMIA alternatives, why LMIA• Contract duration• Duties• Hours• Salary and benefits • Need of position• O/O qualifications

• All written communications/submission should be reviewed by you

WP Application Particulars

• Place of application• Outside Canada for non-visa exempt countries• Upon entry for visa-exempt countries • Within Canada under R199 (where applicable)

• NOC 0 and A occupations “eligible” for Global Skills Strategy processing standards – 14 days

• Include all necessary evidence of employee qualifications• Language test results, if appropriate

• O/O LMIAs and WPs are usually limited to 1 year• May be issued for less to check whether

business plan is put into place

Transition to PR

• Job offer supported by valid LMIA or LMIA WP eligible for offer of arranged employment

• Extra 50 or 200 CRS points depending on NOC

• Most positions will be NOC 00 200 points• As FN owns 50%+ Canadian employer,

experience will not count as Canadian experience for CEC or EE points

• Most employer-driven PNPs not available for employees with more than 10% ownership

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Federal PR Programs for Entrepreneurs

Federal PR Programs – Pros and Cons

• Advantage• Direct path to PR• Low or no minimum investment

• Disadvantages• Long processing times• Bureaucratic hurdles make it

impractical

Start-Up Visa

• Objective: target immigrant entrepreneurs who are: innovative, can create jobs for Canadians and can compete on global scale

• Plan to settle in a province other than Quebec • Biggest hurdle - application conditional on letter of support from

designated • Venture capital funds OR• Angel investor groups OR• Business incubator organizations• https://www.canada.ca/en/immigration-refugees-

citizenship/services/immigrate-canada/start-visa/eligibility/designated-organizations.html

• Minimum investment to raise• $200,000 from venture capital • $75,000 from angel investor• No need to secure investment from business incubator but must be

accepted into program

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Start-Up Visa

• Up to 5 co-founders with qualifying business can apply for PR• Each applicant must hold at least 10% of voting rights attached to all

shares• Applicants and designated organization must cumulatively own more

than 50% of all voting rights• Candidate requirements

• CLB 5 in English/French• Sufficient settlement funds for family size (same federal table as

skilled workers)• At time of PR

• The business must be incorporated in Canada• Applicants must provide active and ongoing management of the

business within Canada• Essential part of operations of business must take place in Canada

Federal Settlement Funds Table

Number of

Family Members

Funds Required

(in Canadian dollars)

1 $12,475

2 $15,531

3 $19,093

4 $23,181

5 $26,292

6 $29,652

7 $33,014

For each additional family member $3,361

Self-Employed Program

• Restricted opportunities to FNs who• Intend to settle as self-employed individuals in Canada • Have relevant experience in cultural activities, athletics or farm management• Score 35 points based on selection criteria

• Relevant experience• Cultural activities

• 2 one-year periods being self-employed in cultural activities, or• 2 one-year periods participating at a world-class level in cultural activities, or• A combination of two one-year periods in one and the other

• Athletics• 2 one-year periods being self-employed in athletics, or• 2 one-year periods participating at a world class level in athletics, or• A combination of two one-year periods in one and the other

• Farm management – suspended as of March 10, 2018• Calculation of period for relevant experience

• Must be during the period starting five years prior to application and ending on the day IRCC makes a decision on the application

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Self-Employed Program – Selection Criteria

Selection criteria Maximum points

Education 25

Experience 35

Age 10

Ability in English and/or French 24

Adaptability 6

TOTAL 100

Provincial Nominee Options – Permanent Residence

Provincial Nominee Options – Pros and Cons

• Advantage• More “direct” path to PR

• Disadvantages• High net worth/investment requirements • Experience as business owner required or

needed for competitive advantage • Costly and complex• Preparation and processing can be lengthy• EOI programs can be very competitive • Some programs lead to WP first and may not

result in PR if province not satisfied with company performance

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Net Worth/Investment Comparison Chart

Province Min. Net Worth Min. Investment

Alberta (Farming) $500,000 $500,000

British Columbia $600,000 $200,000

Manitoba (Entrepreneur Pathway) $500,000 $250,000 (Winnipeg)

$150,000 (outside Win.)

Manitoba (Farm Investor Pathway) $500,000 $300,000

New Brunswick $600,000

-Also program for int’l graduates (no min)

$300,000


Nova Scotia $600,000


$150,000


Ontario (Entrepreneur) $1,500,000 (GTA)

$800,000 (Outside GTA/ICT)

$1,000,000 (GTA)

$500,000 (outside GTA/ICT)

Prince Edward Island $600,000 $150,000

Quebec (Investor) $2,000,000 $1,200,000

Quebec (Entrepreneur) $300,000 $200,000

Quebec (Self-employed) $100,000 N/A

Saskatchewan (Entrepreneur)

-Other options for farming business

$500,000 $300,000 (Regina and Saskatoon)

$200,000 (elsewhere)

PNP Business Applications – 4 Models

Expression of Interest

(EOI)Application

Permanent

Residence

Expression of Interest

(EOI)Application

Work Permit

Permanent

Residence

ApplicationWork

Permit

Permanent

Residence

ApplicationPermanent

Residence

Ontario Immigrant Nominee Program – OINP

• Corporate Stream (OINP CPD)

• Entrepreneur Stream

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Entrepreneur Stream – Overview

• Steps1. Submit Expression of Interest (EOI)2. If invited to apply, submit application

• If approved, sign Performance Agreement (PA)

3. Under temporary work permit, aim to meet PA• If candidate meets PA nomination

certificate

Entrepreneur Stream – Candidate Requirements

• Experience• At least 36 months (of last 60) of full-time

business experience• As a business owner OR as a senior

manager (either one must be selected in EOI)• Net worth

• Minimum $1,500,000 if business in GTA• Minimum $800,000 if business outside GTA• Minimum $800,000 (even in GTA) if ICT /

Digital Communications industry

Entrepreneur Stream – Investment Requirements

• Personal investment• Minimum $1,000,000 and 1/3 of equity ownership if business

in GTA• Minimum $500,000 and 1/3 of equity ownership if business

outside GTA• Minimum $500,000 and 1/3 of equity ownership if ICT / Digital

Communications industry• Job creation

• 2 permanent full time jobs for Canadian PR or citizens• Exploratory visit

• Mandatory in last 12 months if purchasing existing business• If business partner also seeking nomination, both must meet and

invest minimum requirements • E.g. 4 jobs and $2,000,000 investment if GTA

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Entrepreneur Stream – Business Criteria

• Business must intend to make a profit• Primary income sources must be from active

(earned) income – not passive• Proposed business must comply with Canadian

legal and regulatory requirements, as well as labour legislation

• Proposed business must be considered a permanent business in Ontario

• Third party investors must be a Schedule I or Schedule II bank or an institutional investor

Entrepreneur Stream – Business Criteria

• List of ineligible businesses• Varies depending on GTA or outside

the GTA• Additional requirements if purchasing

existing business

Entrepreneur Stream – Candidate Req’s at Nomination

• After WP is issued and prior to being nominated for PR, candidates must• Have active day-to-day management

of business• Physically reside in Ontario 75% of

ever year under work permit• CLB 4 (English or French) in all criteria

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The Steps of an Entrepreneur Stream Application

• Step1• Online Expression of Interest (EOI)

• No fee• Allows candidate to be in pool for 1

year

2018 Entrepreneur Stream Draws


• Step 2• Invitation to apply to highest scoring

candidates and payment of fee• Review of information declared in EOI

• If approved, sign Performance Agreement• Description of business• Investment amount and timelines• Number of jobs to be created• Mandatory business milestones and

timeframes

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• Step 3• Arrive in Ontario under temporary work permit within 12

months• Business establishment – max of 20 months to meet

business plan in Performance Agreement• Full-time positions must be filled continuously for at

least 10 months and within 10 months of arrival• OINP will monitor business• Submit Final Report within 18-20 months after arrival

• If Performance Agreement fulfilled nomination certificate for PR

Immigration, Diversité et Inclusion Québec

• Investor Program• Entrepreneur Program• Self-Employed Worker Program

Quebec Immigrant Investor Program

• Only immigration program requiring a passive investment• Net worth of at least $2 million• 2/5 years full-time work experience in business

management (planning, supervision and control of human, physical and financial resources)

• Agreement to invest $1.2 million with an approved financial intermediary

• Guaranteed by Quebec government for 5 years at 0% interest

• Investment can be financed• Returned after 5 year maturity period (unless financed)

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Quebec Investor Program

• Cap of 1,900 applications • Intake: September 10, 2018 to March 15, 2019 • No cap and priority processing if applicant

demonstrates advanced-intermediate knowledge of French• Level 7 of the Échelle québécoise des

niveaux de compétence en français des personnes immigrantes adultes OR level B2 of the Common European Framework of Reference for Languages

British Columbia Provincial Nominee Program – BCPNP

• Entrepreneur Immigration

BCPNP Entrepreneur Immigration

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Requirements – Applicant

• Net worth of $600,000

• Work experience (last 10 years) • Minimum 3 years experience as an active

business owner-manager (ownership of 10% or more)

• OR minimum 4 years experience as a senior manager

• OR a combination of at least 1 year experience as an active business owner-manager and at least 2 years experience as a senior manager


• Active management• Applicant must actively manage the business in B.C. and be

accountable for day-to-day operations at place of business • Must be demonstrated in Final Report to be nominated

• Education• Minimum 2 years post-secondary education• OR experience as an active business owner-manager with

100% ownership of the business for at least 3 of the past 5 years

• Residency• Reside within 100 kilometres of the business in B.C. • Be a resident in B.C. for at least 75% of the time while on WP• This must be demonstrated in Final Report to be nominated

• Have or be eligible for legal status in Canada

Requirements – Business

• Can be proposal to establish new business, purchase existing business, or form a partnership

• Investment• Min $200,000 derived from personal net worth • If proposing a Key Staff member, minimum personal

investment of $400,000• Job creation

• Min 1 permanent, new full-time job for Canadian citizen/PR

• Demonstrate likelihood of supporting long-term employment of Canadian citizens/PRs

• Consistent employment of the required number of full-time jobs for at least six months must be demonstrated in Final Report to be nominated

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Key Staff Member

• May propose one Key Staff member whose expertise is essential to the success of the proposed business

• Eligible for WP and may be eligible to be nominated for PR if performance expectations are met

• Requirements • Prove benefit of staff member over Canadian counterpart• Minimum investment of $400,000• Creation of minimum 3 full-time positions for Canadian

citizens/PRs• Must have worked with investor in senior position for at least

1 year• NOC 0 or A job at median wage or above• 2 years post-secondary education

Registration Scoring

BCPNP 2018 Entrepreneur ITAs

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Alberta Immigrant Nominee Program – AINP

• Self-Employed Farmer Stream

Eligibility Criteria

• Sufficient resources to develop a sustainable primary production farming operation

• Min net worth of $500,000 or confirmation of access to a similar amount of funds from other sources

• Min investment of $500,000 of equity in a primary production farming business in Alberta

• $500,000 is the bare minimum • May be required to show ability to invest more

• Investment intentions must be documented in proposed business plan

• Applications representing the best opportunity for growth to Alberta's agri-food targets will be given priority

Eligibility Criteria

• Proof of farm management skills• Financial documentation of existing farm

business• Documentation of education, training and

work experience• Proposed business plan for the farming

enterprise being considered in Alberta• Proof that Canadian financial institution is

willing to finance proposed business

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Saskatchewan Immigrant Nominee Program – SINP

• Entrepreneur• Farm Owner and Operator

• Young Farmer Stream

Saskatchewan Entrepreneur Program

• 3 stage process application • Online Expression of Interest system

• Candidates who meet minimum requirements are ranked in pool using Entrepreneur Category Points Grid

• Invitation to apply followed by Approval Letter in support of 2 year WP

• Nomination for candidates who fulfil conditions of Business Performance Agreement


• Min net worth of $500,000 accumulated through legal means• Verified through third party financial service

providers• Minimum 3 years entrepreneurial or relevant

business management experience in last 10 years

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Requirements – Business

• Investment • Min $300,000 in Regina and Saskatoon • Min $200,000 in all other Saskatchewan communities

• Establish a business that aligns with the points assigned in the Entrepreneur Category Points Grid (for investment amount and sector)

• Own at least 1/3 of the equity of a business in Saskatchewan

• Unless total investment is $1 million or higher• Active and on-going participation in the day to day

management and direction of the business• If establishing a new business in Regina or Saskatoon

• 2 jobs for Canadians/PRs (non-relatives)

Obligation to Live in Province Following Nomination

• PNP applicants make representation that they intend to settle in their respective province• Both to PNP and IRCC

• Potential to be accused of misrepresentation • Advice clients who relocate to document and

keep records of their original efforts to settle in province

• Some provinces have residency requirement during WP period

Importance of the Right Business Plan

Image: http://www.jobinterviewtools.com/blog/job-interview/interview-questions/

Phil Cohen, StrategicElement

T: 1-888-834-5565

E: [email protected]

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Overview

• Often the heart of an application• Geared to the audience: IRCC• Preparing clients makes the difference• Credibility is key• Professional help: not always, but be

prepared to guide clients if not

Elements of a Plan

• The great idea: just the start• What is the business?• Why and how will it succeed?• How do you prove the likelihood of

success?• A workable plan; minimum viable

proposal

Key Elements of a Plan

• What’s the idea & value proposition?• Goals & objectives• Ownership• Operations

• Team• Execution• Technology

• Marketing/ sales plan & budget• Target• Research• Initiatives• *Consider the jump from marketing to closing deals

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• Establishing the business: • Development plan & timeline• Plan to find the right team

• Can they deliver?• Experience (directly or indirectly)?• Feasibility study?• Market research/ analysis?

• Competitive analysis:• Room for more (saturated)?• Barriers to entry• Differentiators• Breaking in


• The Team• Who will it be?

• Experience• Pay• Ability

• Hiring timeline


• Financial considerations: the acid test• Funding: Source? Schedule? Evidence?• Uses of capital

• Start-up expenses• Ongoing expenses• Beware of the confident deal maker!

• Projections (Income, 5 years monthly/ annual)• Assessing the pieces:

• Do the financials make reasonable sense?• How does each piece relate to the financials?• Assumptions (not conclusive): biggest challenge

• Expenses in line with industry standards/ local standards?• Inflation

• Permits/licenses• Legal considerations

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Strategy Variables

• Program emphasis:• Job creation• Making a living• Inter-corporate relationship• VC/ Incubator support• Hands-on management

• Business Emphasis• New/ disruptive product• Investment

Credibility – It’s in the Details

• Googling adjudicators/ public information:• Small project• Inexperienced developer/ operator• Proving funding sources• Permits in place/ applied for • Validation of pro forma: rev./exp.• Validation of budget & timeline• Extraneous (obfuscation?) vs. helpful detail• Demonstrate understanding of local market

Proving Projections - Market Analysis/ Feasibility

• Appearing more frequently• Full study: not required, but good idea• Demand: the missing link• What’s enough? • When to get a full study • Judgment call: avoid after-the-fact

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A Few Reminders

• Beware of the kitchen sink• Conclusive assumptions• Legality• Consistency of numbers

Third Party Planners or Time to Spare?

• Should I/ shouldn’t I?…TIME• Client: I can do it…TIME• Program familiarity/ nuances• Failed petition: who’s to blame?

Third Party Planners

• Should I/ shouldn’t I?…TIME

• Client: I can do it…TIME

• Program familiarity/ nuances…TIME

• Failed petition: who’s to blame?... Reputation

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Third Party Planners – Choosing

• Writer or business experience• MBA: enough?• Program knowledge: red flagging issues• Review process:

• Internal• With client• With immigration professional

Preparing Your Client

• Initial assessment of business• High-level checklist• Time: more than most realize• Deliver a plan, but plan to deliver• Make it real and verifiable• Requires real thought• Overview of what to expect• Developing a concept vs. writing a plan

Ethical – Professional Responsibility Considerations


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Competence – Art. 5 RCIC Code

• Complex applications, require experience on many fronts

• Obligations if not competent • Decline to act• Disclosure and informed consent • Consult or collaborate • Inform, educate, use mentors

• Use experts• Incorporation, tax advise, business planning

• Do not delve into areas outside scope of practice • Contract law, shareholder agreements, tax law

Conflicts of Interest – Art. 9 RCIC Code

• Most cases will involve representation of both employer and employee less of an issue

• BUT beware of conflicts when representing corporation and separate employee

• Member shall not represent parties with potentially conflicting interests, unless after adequate disclosure and with consent

• Stop acting in a matter where there is or is likely to be a conflict of interest

• Consider both actual and potential conflicts of interest• If joint retainer, follow procedure

• Personal conflicts• Doing business with client• Referral fees paid to you by experts

Questions


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Thank you!