As we discussed in the first article in this series, Immigration, Refugees and Citizenship Canada (IRCC) madesome major updates in November on the eligibility criteria of the Labour Market Impact Assessment (LMIA) exemption code of the C11 work permit. This article continues to explain the impact of these updates. Economic benefit considerations These are the benefits that the foreign national would contribute to the company’s growth, expansion or continuation and that have fiscal benefits and allow for the competitive advantage of Canada’s business community.
Expected documented evidence are:
- Transitional plan: preventing the disruption of employment for Canadians or permanent residents;
- Resumé of the applicant: using their considerable work experience in negotiating and concluding business transactions that would benefit the Canadian economy;
- Staffing plan: advancing Canadian industry through market expansion, job creation and product or service innovation;
- Offer of employment to Canadian citizens or permanent residents; and
- Business plan for remote areas
Social benefit considerations
- The foreign national’s work will provide significant external benefits to other third parties not directly involved in the transaction. Expected documented evidence can be a business plan and supporting evidence that is:
- addressing health and safety threats to Canadians or permanent residents;
- promoting the improvement of a community’s image and pride, and a boost in local investments in heritage resources and amenities
- that support tourism services;
- developing products that will assist in improving environmental considerations; and
- strengthening social inclusion in communities
Cultural benefit considerations
Culture is defined as creative artistic activity and the goods and services produced by it, and the preservation of heritage. Expected documented evidence is:
- national or international awards or patents;
- member of an organization requiring excellence of its members;
- member of a peer review panel or an authority to judge the work of others;
- recognized for achievements;
MCanada making C11 work permit exemption difficult for temporary workers, part two – The Lawyer’s Daily
- scientific or scholarly contributions to their field;
- publications in academic or industry publications;
- a leading role in an organization with a distinguished reputation.
According to the IRCC’s operation manual for a work permit under the C10 guideline, while the decision maker must provide a rationale and details for applying paragraph R205(a) in the application notes, each factor of this legal test must be proved by the related supporting document.
New instruction on choice of NOC and job title for applicant
Unlike generic national occupation classification (NOC) code number 88888 which applies to entrepreneurs, if the applicant is self-employed the NOC and the job title should match the duties described depending on the exact nature of their intended work. It is very important to consider the job requirements including work experience and language requirements, education and specialty training to perform the work. While providing documented evidence from regulatory bodies of the province will be very helpful and should be provided with the application, some occupations may require the applicant to write an exam after they enter Canada.
A specific extended requirement in terms of Significant benefit considerations
In addition to the general considerations provided in Significant benefit to Canada (R205(a) — C10), the decision makers should assess and apply very specific considerations that include the viability of the proposed business, the applicant’s language ability and work experience, steps that have been taken to initiate the business in Canada, the temporary nature of the business and transitional plan for year-round businesses. The business legal structure is not important — it can be a sole proprietorship, franchise, corporation, etc. Therefore, the applicant must provide documented evidence to address the following questions:
- Is the work likely to create a viable business that will benefit Canadian or permanent resident workers or provide economic stimulus to the area?
- Does the applicant have the language abilities needed to operate the business?
- Does the applicant have a particular background or skills that will improve the viability of the business?
- Is there a business plan that clearly shows that the applicant has taken steps to initiate their business?
- Has the applicant taken some measures to put the business plan into action (evidence of having the financial ability to begin the business and pay expenditures, renting space, having a staffing plan, obtaining a business number, showing ownership documents or agreements, etc.)?
- Is the business of a temporary nature?
- Is the applicant establishing a long-term business that will require their presence indeterminately?
At least 50 per cent of the ownership requirement
The degree of ownership requirement remains and the applicant under the C11 category must own and control at least 50 per cent of the proposed business.
One applicant from one business rule
There is a very straight formula: one applicant from one business. For businesses with multiple owners, only one owner from the proposed business is generally eligible for an LMIA Exempted work permit according to paragraph R205(a), unless exceptional circumstances can be demonstrated such as situations where both owners have specialist knowledge in the business.
Qualifying relationship between the employer and the applicant
As previously mentioned, in the C11 category the foreign worker who applies for a work permit should be assessed both as the employer and the employee, but there still must exist a qualifying relationship between the employer and the foreign worker. The applicant “Must take a position in Canada.” The essential element in determining this relationship is the right of the employer to order and control the employee in the performance of their work. While full-time employment by the Canadian business is anticipated, there is no requirement that the foreign national perform full-time service in Canada.
Recognizing the concept of ‘dual intent’ in the C11 context
Although work permit applicants under C11 may have a dual intent to seek status as temporary workers and, eventually, as permanent residents, they must always satisfy the officer that they will leave Canada at the end of the temporary period authorized under section R185. The applicant must be able to demonstrate that their work in Canada will be temporary, that they maintain the capacity and willingness to leave Canada, and that they maintain stronger ties to their residence outside Canada.
More than 12 months of work permit
There can be a recognition of the duration of a more than a 12-month work permit if the applicant can show that he or she has a definite plan to transition out of managing the business.
This is the second of a two-part series. Read the first article: Canada making C11 work permit
exemption difficult for temporary workers, part one.
Afshin Yazdani is barrister, solicitor and founder of YLG Professional Corporation Yazdani Law Groups, headquartered in Toronto, with olTices in Vancouver, Los Angeles as well as the Niddle East. YLG was one of the pioneers of the LMIA exemption code of the C11 work permit program in 2019.
