How to succeed an Owner-
How to succeed an Owner-Operator Work Permit Application in Canada
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:
1. Owner-Operator work permit based on a Labour Market Impact Assessment (LMIA Basis)
2. 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:
1.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;
2.Recommended the business structure be an incorporate or company;
3.Must hold 50% or more of the interest in the Canadian business, otherwise must meet the recruitment condition;
4.Must maintain a position within the business that cannot be dismissed or is answerable to a more senior member of the company;
5.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;
6.Must have a skill set or experience that will improve the feasibility of the business;
7.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
8.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
10.Owner-Operator LMIA unlike most LMIA categories, does not require advertisement or recruitment
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, 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.
“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 duration where: (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.
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, 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, On 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. 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.
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