This guest article was authored by Megan Fanjoy, recent Queen’s University graduate and Intern at Corporate Immigration Law Firm (CILF).
Interested in working as a self-employed person in Canada without being a Canadian citizen?
The immigration options might prove to be more narrow than you think. As of April 1, 2021, the Canadian government removed the Owner/Operator category from the Temporary Foreign Worker Program (TFWP). The Owner/Operator program enabled applicants to apply for a work permit in Canada without having to comply with the job advertisement regulatory requirements listed under the Labour Market Impact Assessment (LMIA). Unlike a regular high-wage/low-wage LMIA, the Owner/Operator LMIA was an opportunity for entrepreneurs to work and immigrate to Canada, while simultaneously receiving 200 CRS points for Express Entry—significantly increasing the opportunity to apply for permanent residence status in the future. The end of the owner/operator LMIA means those perks are off the table and the immigration landscape for self-employed persons in Canada has shifted. So, with the Owner/Operator program gone for almost two years, what’s filled that void?
Currently, the closest alternative to the Owner/Operator LMIA is the Self-Employed Persons Program, which allows people to immigrate to Canada permanently as a self-employed person. The catch? To immigrate as a self-employed person, you must have relevant experience in cultural activities or athletics—a criterion that many do not happen to meet. In this context, relevant experience refers to a minimum of two one-year periods being self-employed or participating at a world-class level in cultural activities or athletics. The two years of relevant experience must be completed during the period starting five years before the day you apply and ending on the day Immigration, Refugees and Citizenship Canada (IRCC) makes a decision on your application. While there is no net worth requirement for the program, applicants must satisfy a visa officer that they have enough money to settle in Canada with their dependents and finance the work on which their selection was based.
Further, the program requires that applicants be willing and able to solely be self-employed in Canada and meet the program’s selection criteria—including experience, education, age, language abilities and adaptability—as well as the usual medical and background screening conditions. All applicants must earn a minimum of 35 points out of a potential 100 points on the selection grid if they wish to immigrate to Canada as a self-employed person. While the National Occupation Classification (NOC) system lists a wide array of qualifying activities for self-employed persons—namely authors, graphic designers, athletes, and coaches, to name a few—the list is not exhaustive of all careers that self-employed persons undertake. In turn, this means that those who do not work in a relevant cultural or athletic industry are left to consider other pathways to immigration.
Self-employed persons with a business idea beyond the scope of cultural or athletic activities can turn to the Start-Up Visa (SUV) Program as another possible pathway to immigration. The SUV program enables entrepreneurs with support from one or more designated organizations to immigrate to Canada with permanent residence status. Sound enticing? Absolutely; that is until you realize that doing so is conditional on obtaining support from one or more designated organizations—including venture capital funds, angel investor groups and business incubators. Venture capital funds need to agree to invest a minimum of $200,000; angel investor groups need to agree to invest a minimum of $75,000; and business incubator programs are limited. With that being said, immigration admission via the SUV program can be difficult to secure.
For those who have a dual intent to immigrate to Canada as a temporary worker and then eventually as a permanent resident, the C11 Entrepreneur Work Permit under the International Mobility Program (IMP) is a good alternative. The C11 work permit is suitable for three groups of people: self-employed individuals that would like to start a business in Canada; entrepreneurs who would like to buy a business or franchise in Canada; and individuals who were selected under any of the Entrepreneur streams of the Provincial Nominee Program. In each case, all applicants are required to own a minimum of 50% of the company. Under section 183 of the Immigration and Refugee Protection Regulations (IRPR), applicants must satisfy the officer that they have the ability and willingness to leave Canada once their temporary work permit expires. Self-employed applicants who are solely seeking temporary residence have the additional burden of proving that their business would generate significant economic, social, or cultural benefits, or opportunities for Canadian citizens. Significant benefits refer to significant economic stimulus, as well as advancement of the Canadian industry that the person works within—both of which may be hard to prove to visa officers.
On the other hand, applicants seeking eventual permanent residence under the C11 work permit, not including Quebec, may apply for a work permit under the actual or potential provincial nominees undertaking business activities portal. A key eligibility requirement under this stream is that the foreign national must have a letter of support from the respective province or territory—of which they are seeking residency—that indicates the significant economic, social, or cultural benefit that the person will bring to Canada. With that being said, all work permits issued under IMP C11 can only be issued for a maximum period of two years. Once this period has elapsed, an extension can only be granted if an application for permanent residence is being processed or in exceptional circumstances i.e., significant investment projects or applicants for whom a provincial nomination certificate is still pending. If the latter is true, the applicant also requires an additional letter of continued support from the province or territory where they reside. However, extension approvals are hard to come by.
For citizens of the United States and Mexico, the Canada-United States-Mexico Agreement (CUSMA) does facilitate temporary entry for self-employed persons who are involved in the trade of goods or services, or in investment activities. While CUSMA does not assist permanent admission, the trade agreement does enable professionals, business visitors, intra-company transferees, and traders and investors alike to come and work in Canada for Canadian companies—be it temporarily—without being subject to an LMIA. The Professionals category excludes self-employed persons, unless the services to be rendered in Canada are pre-arranged with a Canadian employer. As such, a person who wishes to be self-employed in Canada should consider making an application under another category such as Trader or Investor. However, in the latter case, the self-employed person may not fit the qualifications for that category.
Ultimately, there is no one-size-fits-all option for self-employed persons wishing to immigrate to Canada on a temporary or permanent basis. Since the cessation of the Owner/Operator LMIA, the Self-Employed Persons Program, C11 Entrepreneur Work Permit, and trade agreements such as CUSMA have sought to act as the recommended pathways for self-employed persons to obtain a work permit in Canada. However, despite the aforementioned options available, it’s clear that there are many gaps in the system—leaving many skilled self-employed persons, working in various industries, behind. Going forward, IRCC needs to step up and create a streamlined pathway for self-employed persons to be able to work in Canada. Self-employed folks ought not to jump through a multitude of hoops to bring business to Canada; self-employed workers deserve better.