Foreign nationals wishing to come to Canada to operate a business can apply for a work permit known as the “Owner-Operator work permit”. There are two types of Owner-Operator work permits:
- Owner-Operator work permit based on a Labour Market Impact Assessment (LMIA Basis)
- Owner-Operator work permit under the International Mobility Program (LMIA Exemption Code 11 Basis)
Both types require job offers from the Canadian business, and the only difference is the LMIA basis requires the job offer along with a positive LMIA. In contrast, the LMIA Exemption basis doesn’t need one.
The offer of employment would be from the business to its owner; therefore, somehow, the work permit applicant offers job to himself. Although it is a kind of self arrangement, the job offer must be legitimate and meets a particular requirement.
It is essential to understand that if a foreign national owns less than 50% of the Canadian business, it is recommended that to go the LMIA basis stream. Besides, if there are multiple owners of the business, only one owner will be allowed to obtain an Owner-Operator work permit.
The initial work permit can be issued for a maximum period of two years.
Stream one: Owner-Operator Work Permit Based on a Labour Market Impact Assessment (advertisement or recruitment requirement free – high wage type)
The qualifications stipulated by the ESDC concerning the LMIA for foreign nationals that wish to own or operate their business in Canada and to become qualified for an Owner-Operator work permit based on an LMIA are as follows:
- Must possess a Canadian business located in Canada, either by being the sole proprietor, or by being a specified percentage shareholder, or by providing an official document to confirm that one shareholder has a controlling interest;
- Recommended the business structure be an incorporate or company;
- Must hold 50% or more of the interest in the Canadian business, otherwise must meet the recruitment condition;
- Must maintain a position within the business that cannot be dismissed or is answerable to a more senior member of the company;
- Will have a wage that is equal to or greater than the median wage for the position; therefore, it must be the high-wage stream. Median hourly wages for Ontario is $23.08;
- Must have a skill set or experience that will improve the feasibility of the business;
- Must provide proof that through the temporary entry to Canada there will be a creation or retention of employment opportunities and/or skill transference offered to Canadians and permanent residents of the country
- Must create a viable Business Plan that demonstrates how the business will be funded with the inclusion of at least a basic financial plan and timeline of events, as well as an outline as to how the individual will create or maintain employment within the company. Must cover details such as proof of the active management of the business by means other than through passive investment, financing, leasing office space, and obtaining a Business Number with Canada Revenue Agency
9. Must agree to employ at least one Canadian citizen or permanent resident of the country within the first year. This must be described and included in the finished business plan
- Owner-Operator LMIA unlike most LMIA categories, does not require advertisement or recruitment
Tip
“An additional benefit of the Owner-Operator work permit based on a LMIA is that a foreign national who holds an Owner-Operator work permit based on a LMIA in a senior manager position (NOC 00) can gain 200 additional points under the Express Entry Comprehensive Ranking System (CRS) matrix. In most cases, gaining these additional 200 points will ensure that a foreign national will be selected from the Express Entry pool of candidates.”
How to obtain an Owner-Operator LMIA
Owner-Operator LMIA application can be done Paper or Online https://employer.jobbank.gc.ca/employer/dashboard
The average processing time for LMIA High-wage stream is 49 business days.
Requirements for high-wage positions LMIA
Under Owner -Operator LMIA application usually the employer does need a proof for the legitimacy of his business, but doesn’t need to provide a transition plan if the job if for limited period of less than 2 years or skill level is 00. The employer also doesn’t need to provide a proof that he has conducted advertisement to recruit Canadian.
Generally speaking, in accordance with LMIA guideline of ESDS[1], the eligibility requirement for high-wage stream are business legitimacy, transition plan, wages, and work conditions, but doesn’t require recruitment. Here we explain each element:
First: Business legitimacy:
All employers applying to the TFWP must supply documents along with their LMIA application to demonstrate that their business and job offer are legitimate. The factors that ESDS considers when assess the application and supporting documents are those that confirms the business (a) has no past compliance issues; (b) can fulfill all of the terms of the job offer; (c)is providing a good or a service in Canada; (d) is offering employment that is consistent with the needs of your business.
To prove the employer can fulfill all of the terms of the job offer, the employer must submit an attestation prepared by a Lawyer in Canada confirming that the Canadian business is in good financial standing and will be able to meet all financial obligations to any temporary foreign worker it hires for the entire duration of their employment. The Canadian business may also submit its contract or invoice for the goods or services that it is providing in Canada
To demonstrate that the employer have a legal business that provides a good or a service in Canada must provide at least its valid municipal/provincial/territorial business license, preferably also an attestation confirming that the employer is engaged in a legal business that provides a good or a service in Canada where an employee could work and a description of the main business activity.
Tip
“Permanent residency LMIA stream only, confirmation that the business has been operating for at least one year must also be included in the attestation”.
Second: Transition plan:
A Transition Plan is valid for the duration of the employment of the temporary foreign worker, which is a mandatory requirement to hire temporary foreign workers in high-wage positions. It describes the activities the employer agrees to undertake to recruit, retain and train Canadians and permanent residents and to reduce its reliance on the Temporary Foreign Worker Program.
The Transition plan requirement doesn’t apply if:
a) The Transition plan requirement does not apply if the position the employer is requesting is for a limited durationwhere: (a) the job is time-limited in nature, and the employment duration may range from 1 day to a maximum of 2 years; (b) there is no reasonable expectation that you could transition the position to a Canadian or permanent resident; (c) the job will not be filled after the departure of the temporary foreign worker as the position will no longer exist (for example, project-based occupations such as consultant for business management, a specialized engineer for a dam construction project) (d) in some cases, repeat use of the specific position is the norm for the industry, but each employment duration is limited (for example, some Film and Entertainment positions; emergency repairs and warranty work)
b) The Transition plan requirement does not apply if the position the employer is requesting is for unique skill – skills or traits which belong to a specific individual and are not readily available in Canada, for example, NOC 00 occupations.
Third: Recruitment:
Before applying for an LMIA, the employer must conduct at least three different recruitment activities, which includes advertising on the Government of Canada’s Job Bank, and two other methods of recruitment that are consistent with the occupation.
In certain circumstances, there are variations to the advertising requirements for specific positions and business owners are one of them. To be qualified as an owner/operator[2], foreign nationals must demonstrate before submitting their application, and for the duration of their employment in Canada: (a) they have controlling interest in the business by being the sole proprietor, o 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 a controlling interest. And (b) they cannot be dismissed.
Fourth: Wages and Job duties and working conditions:
Wages offered to temporary foreign workers should be similar to wages paid to Canadian and permanent resident employees hired for the same job and work location, and with related skills and years of experience. The employer must pay the prevailing wage, which is defined as the highest of either the median wage on Job Bank[3]. For example, the median wage per hour for NOC 0013 is $53.37.
In terms of job duties and working conditions, The temporary foreign workers you hired, as a result of a positive LMIA, must only perform tasks that correspond to the occupation they were hired for.
Stream two: Owner-Operator Work Permit Under the International Mobility Program – LMIA Exemption Code 11
The International Mobility Program (IMP) under R205(a) paves the way to apply for a work permit which exempted from LMIA. The exemption for owner-operator work permit codified under code C11, which quoted as “entrepreneurs or self-employed people”.
With some exceptions similar to the LMIA basis Owner-Operator WP, to qualify for an Owner-Operator work permit under the International Mobility Program, a foreign national (Work Permit Applicant) must demonstrate that:
- He/she owns at least 50% of the business; the business is better to be incorporated in Canada; it can be done through establishing a new business or purchasing an existing business and turn it to a successful business; to demonstrate controlling interest in the business it can be determined 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 a controlling interest;
- Operating the business will generate significant economic, social or cultural benefits for Canada, or will provide opportunities for Canadians or permanent residents, such as employment or a unique service;
- He/she has a viable business plan that will benefit Canada and the Canadian population;
- He/she is the best candidate for the job, and has a skill set or experience that will improve the feasibility of the business;
- He/she has taken measures to put the business plan in place from every prospect prior to entering Canada such as financing, leasing office space, and business number, contacting parallel businesses, signing agreements with Canadian suppliers, etc.;
- He/she has filed an Offer of Employer (Employer Compliance) application from his behalf with Immigration, Refugees and Citizenship Canada (Immigration Canada) through employer Portal and received an Employment Number.
Tip for preparing a business plan
“To have a successful application, a business plan must address all the following matters:
– Must demonstrate that it is a well-researched and detailed business plan by including proper market research, staffing plan to recruit Canadians or permanent residents of Canada, financial matters, local issues…
– Must show the business plan significantly contributes to the Canadian economy. While it does not have to be millions of dollars investment, it must show the combination of the investment and their expertise could create opportunities for other Canadian companies and individuals. Nevertheless, there is no minimum investment under this program.
– Must contain the applicant’s resume to prove the immigration officer who reviews the application the applicant’s experience and education make him/her the best person for the job. A rich history of business ownership or management could be beneficial.
– Must demonstrate that the applicant owns at least 50% of the Canadian business. The ownership can be either through purchase an existing business in Canada or establish a new one.”
What must be done prior to applying for Work Permit
Before applying for a work permit, the applicant needs to take serious steps toward running the Canadian company that includes the following steps; which is neither inclusive nor exclusive:
- preparing a detailed business plan by professionals;
- registering the business in Canada, preferably incorporated with having a Canadian director by professionals;
- conducting an exploratory visit to Canada, the applicant may need to obtain a multiple entry visitor visa to do it either as a tourist, family visit, or business visitor;
- signing memorandums of understanding with other Canadian companies;
- leasing an office even a virtual or shared office;
- publishing a very detail website that it has a homepage, about us, our services or goods, our customers, associates, testimonial, our contact information;
- updating LinkedIn and other professional web platforms
- transferring funds to Canada, or showing international secured funds in overseas banks available to be transferred to Canada through an attestation letter from an accountant or lawyer in Canada;
- hiring Canadians or permanent residents of Canada, or at least having a director who is Canadian or PR.
- 10.demonstration that the profits of the business remain predominantly in Canada or proof that other significant benefits have accrued to Canada;
- proof that all appropriate federal, provincial or territorial and local tax returns have been filed; and
- 12.proof that they meet the temporary requirement of subsection A22(2), that they will leave Canada at the end of the period authorized for their stay.
- 13.Providing the evidence of English or French language;
- 14.Providing the evidence of sufficient funds to support themselves while in Canada.
How to apply for Owner-Operator work Permit
To be eligible, a foreign national must
- have received either
- an offer of employment number, or
- authorization by the Immigration Program Guidance Branch (IPG) to submit the “Offer of Employment to a Foreign National Exempt from a Labour Market Impact Assessment (LMIA)” form [IMM 5802] (see Employer-specific work permits with Labour Market Impact Assessment exemptions for details);
- have paid the employer compliance fee (self-employed persons are considered their own employer and must therefore pay the employer compliance fee); and
- have submitted an application for a work permit.
Work permit issuance
The work permit will be issued under the authority of paragraph 205(a) and will be coded as follows:
- Employer name: foreign national’s name or business name as per the offer of employment
- Employment location: as per the IMM 5802 form and work permit application
- LMIA-exemption code: C-11
- NOC: 8888
- Intended occupation: entrepreneur
- Case type: 52
- LMIA-exempt (offer of employment) number: required
- Employer compliance fee: required
- Duration: the work permit is to be valid as per the applicant’s request and officer’s judgement
What if the applicant of work permit also is seeking eventual permanent residence
There are two categories of potential permanent residence applicants who may apply for a work permit under this category:
- Actual or potential provincial nominees undertaking business activities;
- Quebec-destined entrepreneurs or self-employed persons issued a Quebec Selection Certificate (CSQ).
Applicants in these categories have demonstrated that their admission to Canada to begin establishing or operating their business may generate significant economic, social or cultural benefits or opportunities for Canadian citizens or permanent residents pursuant to paragraph R205(a).
What types of businesses structure in Canada is suitable for Owner-Operator Work Permit
Although there several business structure in Canada such as sole proprietorship, partnership, limited partnership, professional corporation, and incorporation, but when it comes to immigration or work permit the only recommended option is Incorporation. A corporation can be federal or provincial in Canada. A corporation consist of shareholders or incorporators and a board of directors. Shareholders are the owners of the company. The board of directors of a corporation is the governing body of the business. They are the policy makers of the business. They, for example, hire and fire the CEO (Chief Executive Officer) of the business and oversee her or his management. They also monitor the financial health of the business and more. A member of the board of directors is called a director of the business. Directors may or may not be shareholders. It is, however, customary for a director to be a shareholder.
Both the federal government and many of Canadian provinces including Alberta, Ontario, Manitoba, Saskatchewan, Newfoundland/Labrador expect a 25% of directors of a company to be Canadian citizens or permanent residents. British Columbia, New Brunswick, Nova Scotia, Nunavut, Northwest Territories, Yukon and Quebec doesn’t not have this restriction.
How to get an Employment Number for LMIA Exemption Code 11
It has to be done online through Employer Portal by completing the IMM 5802. When completing the Offer of Employment to Foreign National Exempt from a Labour Market Impact Assessment (IMM 5802).
[1] https://www.canada.ca/en/employment-social-development/services/foreign-workers/median-wage/high/requirements.html
[2] To become more familiar with the concept read online https://www.canada.ca/en/employment-social-development/services/foreign-workers/variations.html
[3] To search the wages see online https://www.jobbank.gc.ca/trend-analysis/search-wages