2018-08-01 Additional 2018 CPDS Your CPD Instructor Andrew Carvajal, LL.B / B.C.L., M.A., B.A. Immigration Lawyer and Instructor RCICCPD.ca by Full Skills Exam Prep 1
2018-08-01 A Little About Me • Toronto immigration and tribunal lawyer • Partner, Desloges Law Group • acarvajal@desloges.ca • Twitter: @CarvajalLaw • LinkedIn: ca.linkedin.com/in/carvajalandrew • Personal site: www.carvajal.ca Lesson Goals • Initial client assessment • Intra-Company Transfers (ICTs) • Treaty investors • Owner/Operator LMIA • Federal programs for PR • Provincial programs for PR • The importance of the right business plan • Ethical considerations • Q&A The Initial Client Assessment • Client’s goals: temporary vs. permanent residence • Rule out eligibility for Federal/Provincial skilled labour program • Simpler application • Net worth • Available funds for investment • Managerial/business experience • Percentage of ownership in current/past businesses • Plan to open affiliate of foreign company in Canada? • Plan to set up new business or acquire existing one? 2
2018-08-01 The Initial Client Assessment • English/French skills • Education • Citizenship(s) • Status in country of residence • Immigration history • Prior trips to Canada • Family composition • Potential inadmissibilities Intra-Company Transfers Guidelines and PDIs • R205(a) – C12: General ICT • https://www.canada.ca/en/immigration-refugees- citizenship/corporate/publications- manuals/operational-bulletins- manuals/temporary-residents/foreign- workers/exemption-codes/intra-company- transferees.html • R204(a) – T24: FTA ICTs • https://www.canada.ca/en/immigration-refugees- citizenship/corporate/publications- manuals/operational-bulletins- manuals/temporary-residents/foreign- workers/international-free-trade-agreements.html 3
2018-08-01 ICT - Advantages • Relatively quick application • No minimum investment amount • But must make sense given business plan • Available for start-ups • Available to any nationality • Can be done through FTA or C12 • Available for variety of positions ICT - Disadvantages • Requires existing foreign company • Must have a relationship with Canadian company • Foreign company must continue to operate • Transferee must have employee relationship with foreign company and Canadian company • Not best model for tax saving purposes • Not a PR program, but possibility to transition later ICTs – Eligible Businesses • Business enterprise means any entity constituted or organized under applicable law • Could be privately or government owned • Corporation, trust, partnership, sole proprietorship, joint venture or other association • Includes religious, charitable or other non-profit organizations legally constituted • Both the Canadian and foreign entities must be legal entities 4
2018-08-01 Qualifying Relationship – CAD and Foreign Company • FN must be transferring to an enterprise that has a qualifying relationship with the enterprise in which they are currently employed • Qualifying relationships • Parent • Subsidiary • Branch • Affiliate • Both the Canadian and foreign companies must be, or will be, doing business Qualifying Relationship – CAD and Foreign Company • Doing business means regularly, systematically, and continuously providing goods/services by a parent, branch, subsidiary, or affiliate in Canada and the foreign country • Does not include the mere presence of an agent or office in Canada. E.g. office with no employees/operations • Both Canadian and foreign branches must be doing business for the duration of the FN in Canada • FN must be able to transfer back to foreign company at the end of the assignment Qualifying Relationship – CAD and Foreign Company • Parent • Firm, corporation or other legal entity which has subsidiaries • Subsidiary • Firm, corporation, or other legal entity of which a parent owns • Directly or indirectly, half or more than half of the entity and controls the entity; or • Directly or indirectly, 50% of a 50-50 joint venture and has equal control and veto power over the entity; OR • Directly or indirectly, less than half of the entity, but, in fact, controls the entity • Branch • Operating division or office of the same organization housed in a different location • Affiliate • One of two subsidiaries, both of which are owned and controlled by the same parent or individual; OR • One of two legal entities, owned and controlled by the same group of individuals, each individual owning and controlling approximately the same share or proportion of each company 5
2018-08-01 Qualifying Relationship – Transferee and Foreign Co. • FN must be • Currently employed by foreign company; AND • Have been employed (via payroll or by contract), in a similar position, continuously, full-time and for at least 1 year within the last 3 years prior to initial application Qualifying Relationship – Transferee and Foreign Co. • In the context of a recent merger or acquisition no requirement that the FN has worked for same company abroad and in Canada but for company that has assumed the interests and obligations, assets and liabilities of the original owner and continues to operate the same type of business as the original owner Qualifying Relationship – Transferee and CAD Co. • FN must be employed by Canadian company in executive, senior managerial, or specialized knowledge capacity • 18–24 months used as a reasonable minimum guideline • While full-time employment in Canada anticipated, no requirement that FN perform full-time service in Canada • E.g. an executive can divide working hours between offices in Canada and foreign company 6
2018-08-01 Qualifying Positions • Executives (NOC 00) • Direct the management of the organization or a major component or function of the organization • Establish goals and policies • Exercise wide latitude in discretionary decision-making • Receive only general supervision or direction from higher level executives, BOD or shareholders Qualifying Positions • Senior Managers (NOC 0 or 00) • Manage the organization, a department, subdivision, function, or component of the organization • Supervise and control the work of • Other managers or supervisors • Professional employees, or • Manage an essential function within the organization, or a department or subdivision • Have the authority to hire and fire, or recommend these and other personnel actions • Exercise discretion in day-to-day operations Qualifying Positions • Functional Managers (NOC 0 or 00) • Manage an essential function in the company but do not necessarily manage staff • Essential function generally means a function that is indispensable or important to achieving the organization’s goals • Must operate at a senior level within the organization or within the function managed, and have discretion over day-to-day operations • Junior/middle management and supervisors excluded • As a result • NOCs 0013 to 0016 should be included • NOC groups 01 to 09 may be included depending on responsibility of the position 7
2018-08-01 Qualifying Positions • Specialized Knowledge • High standard; more complex applications • Must demonstrate on a balance of probabilities that FN has high degree of • Knowledge at an advanced level of expertise ; AND • Proprietary knowledge of the company’s product, service, research, equipment, techniques or management • FN must be paid median wage for position in subject location • Review PDIs carefully Start-Ups • FN seeking entry to open new office on behalf of foreign enterprise may qualify for ICT • Must show that enterprise in Canada is expected to support a managerial or executive position or, in the case of specialized knowledge, is expected to be doing business • Factors to consider • Ownership or control of the new enterprise • Secured premises • Investment commitment and financial ability to support the new business • Organizational structure and size of operation to support transferee’s position • Goods/services to be provided • Business plan and viability of foreign operation • See • https://www.canada.ca/en/immigration-refugees-citizenship/corporate/publications- manuals/operational-bulletins-manuals/temporary-residents/foreign- workers/exemption-codes/intra-company-transferees/canadian-interests- significant-benefit-qualifying-relationship-between-employer-foreign.html • https://www.canada.ca/en/immigration-refugees-citizenship/corporate/publications- manuals/operational-bulletins-manuals/temporary-residents/foreign- workers/exemption-codes/intra-company-transferees/canadian-interests- significant-benefit-general-requirements-r205-exemption-code-c12.html ICTs under Treaties (T24) – NAFTA/Chile • Only applies to citizens of FTA countries • Manual provides that there is no automatic refusal because FN was part- time at foreign company • Eligible positions in Canada are executive, managerial capacity broader), or specialized knowledge 8
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