カナダ移民申請・過去記事 10

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Back number: 002b
(Oct. 01, 2011)
カナダ永住権 - 投資ビザ - 分析:
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3. Entrepreneur Category
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Summary of Key Points:
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Entrepreneurs must meet two basic tests: 1) the regulatory definition of Entrepreneur; and 2) they must score minimum 35 points under the point system;
Regulatory Definition of Entrepreneur:
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combined net worth with spouse (including common law partner) of at least C $ 300,000 (no specific requirement as to source of funds, but legal source of $ should be demonstrable - eg. tax records, proof of inheritance, etc.);
has "business experience" (see below);
has the ability to become economically established in Canada; and
provides the visa officer a written statement confirming for at least one year within 3 years of landing in Canada he will:
(i) control minimum 33 1/3 % equity in a "qualifying Canadian business";
(ii) provide active and ongoing management of the qualifying Canadian business; and
(iii) create at least one new full-time job for a Canadian citizen or permanent resident.


No investment needs to be made until after arrival in Canada, but it must be done within 3 years of landing. No minimum investment amount is currently established. The amount of the investment is governed by the % equity controlled (owned) in the "qualifying Canadian business". Investment, active management and creation of employment must carry on for at least one full year only.
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The only limits on the type of qualifying Canadian business to be invested in is that it cannot be a passive business only for deriving investment income such as interest, dividends or capital gains. Otherwise, there is no limitation on the type of active business that may be invested in, including franchises, joint ventures, investments in existing businesses, etc.. It is not clear whether or not property investments and active property management businesses will be acceptable. The regulatory definition would seem to allow it, but historically these types of businesses have not been viewed favourably.
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The Qualifying Canadian Business must be an active business operated in Canada for which there is at least one year of documentary evidence proving at least two of the following:
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(a) the % of equity multiplied by the number of full time jobs in the business is greater than 2 full-time jobs in a year;
(b) the % equity multiplied by the total annual sales is greater than C $ 250,000;
(c) the % equity multiplied by the net income in the year is at least C $ 25,000; and/or
(d) the % equity multiplied by the net assets at the end of the year is at least C $ 125,000 .
EXPLANATORY CHART FOR ENTREPRENEUR
"QUALIFYING CANADIAN BUSINESS"
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%       OWNERSHIP       IN
QUALIFYING CANADIAN BUSINESS:

100%

50%

33.3%

# EMPLOYEES IN A YEAR

2

4

6

ANNUAL SALES (C $)

$ 250,000

$ 500,000

$ 750,000

ANNUAL NET INCOME (C $)

$ 25,000

$ 50,000

$ 75,000

NET ASSETS AT YEAR END (C $)

$125,000

$ 250,000

$ 375,000


Note only that 2 of the above criteria must be met in a given year. Investments of under $ 150,000 are unlikely to be sufficient to meet the test, unless it is an exceptional business. Note that there are no limits on financing the Entrepreneur's investment, only that at least 33 1/3% of the equity be controlled by the Entrepreneur.
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There appear to be a number of creative ways to structure investments that will meet regulatory requirements and keep capital investment relatively low, certainly competitive with current investor financing options. However, the active and ongoing management test for at least one year must be met.
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"Business Experience"
In order to qualify as an Entrepreneur, the Entrepreneur must also demonstrate he or she has "business experience":
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i) management of a "qualifying business" and control (ownership) of a % of equity in the qualifying business for at least 2 years of the 5 years prior to the date of the selection interview and decision in the case
"Qualifying Business" " for Business Experience purposes must not be a passive business for investment income (interest, dividends or capital gains) purposes only, and must meet just 2 of 4 requirements in terms of # of employees, sales, net income and net assets obtained from a formula based on % equity in the business. The following is an explanatory chart:
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%       OWNERSHIP       IN
QUALIFYING BUSINESS/B>

100%

50%

20%

# EMPLOYEES IN 2 OF 5 YEARS

2

4

10

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 $125,000

C $ 250,000

C $ 625,000


Note that because the assessment is made as of the date of interview, it will be necessary to go back the most recent 4 years for the above figures, and to be prepared to provide documentation regarding the year to date up to the date of the interview, if necessary to meet the requirement.

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 offices overseas.

As anticipated, however, a more realistic pass mark and changes to the retroactivity provisions were announced by the Minister on September 18, 2003.

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 to Canada.

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 discretion.

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.

Possible Strategies
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 this approach.

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 to Canada.

Summary of Key Points:

  • unmarried children under 22 accompany the principal applicant;
  • unmarried children over 22 can accompany the principal applicant if they are enrolled and in active full-time attendance in a local government accredited post-secondary institution, and are pursuing academic, professional or vocational studies;
  • these changes create opportunities for children previously excluded on parents' applications (see family class category below);
  • "spouse" now includes common-law partners and same-sex partners who have lived together in a conjugal relationship for at least one year.


Children:

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.

Spouse:

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 laws.



6. Permanent Resident Card and New Residency Test

Summary of Key Points:

  • "183 day rule" and Returning Resident Permits are eliminated;
  • permanent residents are entitled to obtain a 5 year renewable Permanent Resident Card as evidence of their permanent resident status;
  • new immigrants will be issued a PR Card within 180 days of arrival in Canada;
  • Records of Landing will still be useable as evidence of permanent resident status, but as of December 31, 2003 airlines will require the PR Card as clear evidence the person is still a permanent resident of Canada (a "status document"), and therefore the PR Card will become necessary for travel back to Canada unless the person is from a visa-exempt country and can enter Canada without a visa, or can travel to the USA, and present themselves at a Canadian port of entry to assert permanent resident status on arrival;
  • permanent residents must make an application to obtain or renew a PR Card. The application must be made in Canada and will require a "guarantor" and two Canadian references who have known the person, and documentation such as details of departures from Canada, and original provincial indentity documentation such as a health card, driver痴 license or student card.
  • persons outside of Canada without a PR Card after Decemer 31, 2003 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. 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. 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 even if the residency requirement has not been met;
  • the residency test under the proposed rules requires at least 730 days (i.e. 2 years) of physical presence accumulated in Canada within the previous 5 years. This means that permanent residents could safely remain outside of Canada for up to 3 years in a 5 year period ;
  • provision is made to allow employees of Canadian businesses working overseas for that business to be given credit for time outside of Canada in such circumstances, thereby extending how long they may remain outside of Canada and still meet the residency test.

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 be ineligible.

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.

It is also recommended that permanent residents if possible seek to qualify for and obtain Canadian citizenship and a Canadian passport as soon as possible, to avoid potential problems associated with applying for or renewing a PR Card. Proposed changes to the Citizenship Act will in future require 3 years of physical presence in Canada in the previous 6 years in order to be eligible for citizenship.


Judge freezes thousands of immigration applications
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OTTAWA BUREAU: June 25, 2003
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OTTAWA:
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The immigration department has been ordered to stop rejecting applications from more than 100,000 skilled workers until the courts decide if it was legal to apply new rules retroactively to them.
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"This is mind-boggling. It is the nightmare scenario for the immigration department," said Toronto immigration L.L.W, one of those who fought for the injunction in Federal Court.
"The minister can't refuse these people now. He has to keep their files open."
The injunction granted yesterday by Mr. Justice Frederick Gibson is a slap in the face to the immigration department, which overhauled the point system used to select Canada's skilled worker immigrants last year and made the controversial decision to apply the new rules retroactively.
Bureaucrats departed from the usual practice of "grandfathering" the rule changes, even though they knew that would result in more than 100,000 backlogged applications being bumped into the new system.
Many applicants contend that while they would have gained entry under the old system, they will be disqualified by the new criteria. They argue that it is only fair that their applications be processed under the rules that were in place when they submitted their paperwork and paid their processing fees.
A class-action suit that would force the government to process the backlog applications under the old rules or pay damages is now wending its way through the court system.
Susan Scarlett, an immigration department spokesperson, said the department will comply with Gibson's order.
"We will hold off refusing those applications until this case is resolved," Scarlett said. "We will be informing people who applied under the previous legislation of the court action, as per the court order."
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