% OWNERSHIP IN
QUALIFYING CANADIAN BUSINESS:
# EMPLOYEES IN A YEAR
ANNUAL SALES (C $)
ANNUAL NET INCOME (C $)
NET ASSETS AT YEAR END (C $)
% OWNERSHIP IN
# EMPLOYEES IN 2 OF 5 YEARS
ANNUAL SALES IN 2 OF 5 YEARS
C $ 500,000
C $ 1,000,000
C $ 2,500,000
NET INCOME IN 2 OF 5 YEARS
C $ 50,000
C $ 100,000
C $ 250,000
NET ASSETS IN 2 OF 5 YEARS
C $ 625,000
Note that there is no limitation on the type of business that is necessary
to be a "qualifying business" for business experience purposes.
There appears to be no reason why for example a sole proprietor, or professional
such as a medical doctor who owns and manages a clinic would not meet the
objective tests to qualify in terms of "business experience",
as long as they can demonstrate that they have the "ability to become
economically established in Canada" through their investment and active
management in a qualifying Canadian business. The proposed qualifying Canadian
business should probably therefore fit well the Entrepreneur's background
and capabilities, and address any weaknesses such as language ability,
or unrelated management experience.
Business registration documents, business licenses and proof of income,
sales and assets in the form of business tax returns (or in the case of
a sole proprietor consolidated personal income tax returns) and financial
statements certified by an accountant for the 5 years preceding the application
will continue to be required.
Points Assessment for Entrepreneurs
A pass mark of only 35 is required to qualify.
4. New Skilled Worker Category
This is the immigrant category that is subject to perhaps the most significant
changes, which until recently were being applied retroactively to cases
already in process before the change in the law. The new criteria and pass
mark were initially established so high that critics alleged the Government's
intention was to use the new rules to refuse many cases currently in process
to dramatically reduce the backlog, which is 2 to 3 years at many visa
As anticipated, however, a more realistic pass mark and changes to the
retroactivity provisions were announced by the Minister on September 18,
Who will Qualify?
Under the new regulations, those with higher education (including non-university
trade certification), good command of French or English, and up to 4 years
work experience currently have a reasonable prospect to qualify for immigration
to Canada in the Skilled Worker category. If the person has a highly educated
spouse, close family in Canada, previous study or work in Canada, or a
job offer in Canada, this will improve their chances immensely.
Minimum available funds
The proposed rules also impose a requirement that the Skilled Worker applicant
provide evidence of sufficient funds for their resettlement in Canada.
Specific minimum amounts are established - Please see Appendix II .
General Occupation List eliminated
Under the previous regulations, skilled worker applicants must have had
at least one year of full-time experience, and be qualified in and intend
to pursue in Canada an occupation on the General Occupations List, last
updated in May 1997. This occupation-based assessment of applications under
the skilled worker category is eliminated under the new regulations.
The proposed regulations open up the possibility of qualifying for permanent
resident status to a large range of professionals that were previously
excluded on the basis of their occupation. Medical doctors and nurses,
for example, are now eligible to apply.
The Canadian Government reserves the right to designate "restricted
occupations", but has indicated they do not intend to establish such
a list, unless a problem arises with a particular profession in future.
The range of available occupations is not completely open, however. The
applicant's occupation must still meet certain minimum skill-level requirements
to obtain credit for the mandatory employment experience factor. For example,
sewing machine repairers, certain commercial truck drivers, etc. will not
meet the occupation skill level requirements to apply, regardless of their
education and language ability, years of work experience or other ties
Essentially, all occupations under the National Occupation Classification
(NOC) with a number code starting with 0, or starting with numbers 1 -
9 followed by a 1, 2, or 3, will be available to accumulate points under
the experience factor for immigration purposes. These occupations have
specific experience and educational requirements associated with them that
still must be met by the applicant.
Attached as Appendix I is a list of all the qualifying occupations broken down by occupation group
categorization. Reference to the NOC is required to check the experience
and education requirements for each occupation.
New Point System
As of September 18, 2003, the new pass mark will be 67 points. Points are
awarded for the following factors: age, language ability, education, work
experience, arranged employment and adaptability.
It is significant that a "personal suitability" assessment, that
is available under the current rules, is no longer part of the criteria.
This means that if you meet the points requirement and the application
is well - documented, the chances of success and possibly a waived interview
are very high - because a subjective assessment by a visa officer at an
interview of "personal suitability" is no longer required.
However, there is specific provision for both positive, and negative discretion
to be exercised, notwithstanding the point score. This means that applicants
who do not quite meet the point requirement of 67 still have a chance of
success in appropriate circumstances. It also means that applicants who
apparently have enough points but do not address issues related to preparation
for immigration or knowledge of Canada or licensing requirements related
to their profession, for example, may find themselves refused on the basis
of negative discretion. Indeed, the Regulatory Impact Analysis Statement
published by the Government indicates that negative discretion has not
been used enough in the past, and is expected to be used more in future.
Therefore, it is important to consider factors beyond the points calculation
alone, and in appropriate circumstances obtain professional advice with
respect to factors which may lead to the exercise of positive or negative
Self-Assessment Chart Attached as Appendix II is a simplified chart explaining the factors and points in order to make
a calculation under the points system.
For those that do not appear to qualify under the new regulations, alternative
longer-term strategies should be considered.
The new regulations favour temporary status to study or undertake employment
in Canada, and people who have studied or worked in Canada can obtain additional
points under the education, language, experience and in particular, the
adaptability factor. Most importantly, the prospects for permanent resident
status and the prospect for the exercise of positive discretion improve
significantly for those who have studied or worked in Canada.
A viable strategy for some families may be to send a child to Canada to
study, upon graduation the child could work in Canada and then apply for
permanent resident status. Once a permanent resident, the child could then
sponsor parents and family members to Canada as members of the family class
category. Of course there are many considerations in such a scenario, but
a carefully executed plan in the appropriate circumstances could well be
a viable strategy to bring an entire family to Canada over several years.
Please consult with your professional advisor on how one could get started
with this approach. Study in Canada by international standards is very
inexpensive and the quality of education is extremely high.
Another approach would be to directly seek employment in Canada, improving
English skills, the experience factor, the adaptability factor and making
the case much stronger in terms of the possible exercise of positive discretion.
Unless there are connections in Canada already, working closely with a
reputable employment agency that can provide realistic advice at the outset,
and high quality employment search services, is critically important. Again,
there are many considerations in such a scenario, and a carefully executed
plan in the appropriate circumstances could be a viable strategy. Please
consult with your professional advisor on how one could get started with
Finally, several of the provincial governments in Canada have agreements
in place with the Federal Government to run their own Provincial Nominee
Programs (PNP), and Quebec has it's own selection system and bureaucracy.
Provinces such as Manitoba, Alberta, BC, Saskatchewan, Newfoundland, Nova
Scotia and PEI have certain occupations or sectors under which they will
assess applicants for immigration. Normally a visit to the province is
required, but not always. Approval for a Nomination Certificate by a province
under the PNP will be sufficient to qualify for permanent resident status
in Canada, subject only to medical, criminal and admissibility checks by
the Federal visa office (normally no Federal interview is required).
5. Accompanying Dependents
The new regulations are more generous than the previous rules in terms
of who is a "family member" who may accompany the principal applicant
Summary of Key Points:
The new regulations raise the base age of accompanying dependents to 22
years of age. This saves many children who were subject to military service,
and were out of school over one year after turning 19 years of age. After
turning 22 the child, including an adopted child, must be unmarried, financially
dependent on the parents and must be enrolled in a government-accredited
post-secondary institution and must be actively pursuing full-time academic,
professional or vocational studies.
It is important therefore to ensure that any children turning 22 are enrolled
and in full-time study in an accredited post-secondary institution and
suitable program of study.
Please see the new family class category provisions below, which create
opportunities for children who meet the new definition but under the old
regulations may have previously been excluded from accompanying their parents
and family to Canada.
The definition of "spouse" has been broadened to specifically
include common-law (i.e. not legally married) partners and same-sex partners.
To qualify, the common-law partner or same-sex partner must be able to
establish that they have been in a conjugal relationship and have been
cohabiting (living together) for at least one year. In certain circumstances,
there may be an exemption from the cohabitation requirement where to cohabit
in such a relationship could result in persecution or violation of local
6. Permanent Resident Card and New Residency Test
Summary of Key Points:
The Permanent Resident Card (PR Card) provisions are in some ways an improvement
over the previous law. The pervious law required permanent residents to
remain in Canada at least 183 days in a 12 month period, or obtain a Returning
Resident Permit (which was available in only limited circumstances), in
order to maintain permanent resident status. The new law does away with
the so-called '183 day rule', which creates a presumption that a person
has abandoned their permanent resident status if they stay outside of Canada
over 183 day in a 12 month period. The new PR Card will give permanent
residents much more freedom for extended travel without risking their status.
However, there are downsides as well.
Permanent residents of Canada will now be issued a PR Card, which will
have a validity of 5 years and which is considered evidence of their legal
permanent resident status and right to return and remain in Canada. Not
having a valid PR Card will not mean you are not a permanent resident -
the card does not confer status. Holding a PR Card however creates a presumption
of valid permanent resident status. Not having a PR Card creates a negative
presumption that the person is not a permanent resident of Canada.
Persons already with permanent resident status are not required to apply
for the PR Card - technically they will still be able to rely on their
paper Record of Landing while in Canada. However, they must still meet
the new residency requirements, and as of December 31, 2003 airlines will
absolutely insist to see a valid PR Card before boarding passengers as
permanent residents destined back to Canada, essentially making this a
mandatory document for permanent residents when traveling abroad. The PR
Cards will be issued to new immigrants after arrival in Canada, and the
proposed regulations require that they be issued within 180 days to an
address provided at the time of landing.
Those already in Canada who need to apply for or renew the PR Card must
provide a "guarantor" or make a declaration in lieu of guarantor,
plus provide details of their employment or studies, addresses over the
5 years, details of absences from Canada, etc.
This is because permanent residents still have to comply with a residency
requirement in Canada during a 5 year period in order to apply for or renew
the PR Card. The new Act provides that the permanent resident must be physically
inside of Canada at least 730 days in a 5 year period (i.e. a cumulative
period of 2 years). Therefore, it is permissible to remain outside of Canada
for up to 3 years during the 5 year period, and still be able to renew
the PR Card.
The Act and regulations also provide for specific circumstances where a
permanent resident may remain outside of Canada over 3 years (i.e. less
than 2 years of physical residence in Canada required during a 5 year period)
and still be eligible to renew the PR Card. Most notably are full-time
employees of a Canadian business requiring them to be overseas. The business
must be legitimate, generating revenue and being carried out in anticipation
of a profit. Businesses incorporated solely for residency purposes will
The PR Card application can be submitted in Canada while overseas, but
must be picked up in person in Canada at the appointed time, with presentation
of appropriate identification.
Persons outside of Canada without a PR Card after June 28, 2002 may not
be able to re-enter easily, and may be required to apply for and obtain
a travel document from a Canadian visa office overseas in order to return
to Canada and apply for the PR Card. "Travel documents" must
be issued if the permanent resident meets the residency requirement during
the previous 5 years and was physically present in Canada at least once
in the last 365 days before the application. If the residency test cannot
be met, special exemptions may be sought on humanitarian and compassionate
grounds including considerations of the best interests of any children
in Canada, or where a timely appeal is made to the Immigration Appeal Division,
to obtain the travel document to facilitate the return to Canada.
Permanent residents who can travel to Canada without the need for a visa
(they are citizens of a visa exempt country for travel to Canada), or who
can travel to the United States, are fortunate in that they can present
themselves at a Canadian port of entry without dealing with airlines refusing
to board them on flights to Canada without a PR Card. Permanent residents
must be admitted to Canada at a port of entry, but may be subject after
arrival to legal proceedings to have them removed from Canada as permanent
residents if they have not met the residency test. Legal representation
and taking advantage of appeal rights will be very important in these circumstances,
as there are strategies available to avoid losing permanent resident status
if this situation develops.
It is recommended that people who are currently permanent residents of
Canada and who may not be able to meet the new residency test seek professional
advice and make plans to safely re-enter Canada and accumulate the necessary
residency according to the test, and apply for a PR Card to facilitate
their overseas travel in future.
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