Owner Operator Work Permits
Any Canadian employer wishing to employ a temporary foreign worker in Canada must first obtain authorization from the government, which the Labour Market Impact Assessment (“LMIA”), previously known as Labour Market Opinion or(“LMO”).
Most LMIA applications require the employer to advertise the role to Canadian workers. However, certain LMIA applications are exempt from the advertising requirements. Owner/Operator LMIA is one of those applications. This category is for foreign nationals who wish to establish or purchase a business in Canada, and want to work in that business in a high-skilled position, often with the aim of immigrating permanently. To qualify as an owner/operator, a foreign national must:
- demonstrate a level of controlling interest in the business, i.e. a sole or majority shareholder;
- demonstrate that his or her temporary entry to Canada will result in the creation or retention of employment opportunities for Canadians and permanent residents and/or skills transfer to Canadians and/or permanent residents; and
- not be in a position to be dismissed, i.e. is not in an employment position where her or she is answerable to someone more senior.
For Owner/Operator LMIAs, no advertising or recruitment is required. The key requirement is that the foreign national owns a business in Canada in which he or she owns a controlling interest of more than 50%. Other requirements include:
- a business plan that shows how the owner/operator will fund the business and create or maintain employment, and contains at least a rudimentary financial plan and timeline of events;
- active management of the business (i.e. it cannot be a passive investment) in a position that accords with the foreign national’s qualifications and experience with a wage equal to or greater than the median wage requirements for the position; and
- and employing at least one Canadian or permanent resident (ideally in the first year as described in the business plan).
Once an owner/operator receives a positive LMIA, he or she can apply for a work permit from Immigration, Refugees and Citizenship Canada equal to the validity of the LMIA (usually up to 2 years).
The application process for an owner operator work permit is as follows:
- Just like any other Temporary Foreign Worker, the applicant has to have an LMIA, meaning by the application process of the LMIA shall be followed, however, there are some exemptions to the requirements of advertisements, but the first and the most important document to apply for work permit is the LMIA. The owner/operator must demonstrate that he is integral to the day-to-day operation of the business and will be actively involved in business processes/service delivery in Canada. In such instances, greater consideration should be given to demonstration by the applicant (owner/operator) that such temporary entry will result in the creation or retention of employment opportunities for Canadian and permanent residents and/or skills transfer to Canadians and permanent residents.
- During the process of LMIA, the application will be assessed by Service Canada based on the genuineness of the job offer, business is active, and hiring the new owner would have either neutral or positive effect of Canadian Labour Market, if all the requirements are met then a positive LMIA may be issued.
- Once the LMIA is issued then the applicant will prepare the application for a Work Permit
THINGS YOU SHOULD KNOW!
There are few facts which the applicants should be aware of:
- LMIA is half the picture, “an officer shall not issue a work permit to an individual if there are reasonable grounds to believe that the foreign national is unable to perform the work sought”, hence the applicant must establish ability to do the work to get the work permit.
- There are two types of owner operators, Principal Owner Operator and Co-Owner Operator. The main difference between the two, during the LMIA process, wages is not assessed for Principal Owner Operators.
- In this process, the emphasis is on the Job Creation and/or Job Retention for Canadians, so in the business planning this aspect must be highlighted.
- Active involvement in the business and being an integral part of the business is very important. And owner must own the shares directly.
- The owner must have controlling interest and not able to be dismissed, the business must be financially viable and should be able to afford the wages of employees and the owner.