Owner/Operator LMIA is a special class of applications within the TFWP whereby a self-employed/qualified individual wishing to enter Canada can do so by establishing or purchasing a business. A foreign national would be an Owner/Operator if they establish that they have a controlling interest in the business and cannot be fired/dismissed (only answerable to themselves). Controlling interest according to guidelines and policy can be established by either:
There is no specified minimum percentage of shares to be held by a foreign national to be considered an Owner/Operator. In cases, where there are multiple owners of a business, the largest shareholder or the equal shareholder designated as the “employer” must apply for LMIAs to Service Canada for the other co-owners as “workers”. Individuals who only receive shares (less than to establish the controlling interest) as part of a compensation package are not subject to the term Owner-Operator. The foreign nationals must demonstrate that they have the controlling interest prior to submitting their application and for the duration of their employment in Canada.
The burden of proof in owner/operator LMIA application is on the foreign national/investor to provide information/documents to prove their shareholding/ownership status.
Key scenarios and considerations in owner/operator LMIA application
New start-up business
This scenario is applicable to a foreign national where the individual is 100% owner of a start up business not in operation in Canada yet but dependent on a positive LMIA and Work Permit (WP). The owner/operator guidelines considerations state that the TFW can be considered owner/operator for the purposes of the LMIA if they can demonstrate that they have considerably prepared to open and operate the business (e.g., have incorporated the business, applied for a business license, entered into a lease agreement, securing contracts, etc.), have a viable business plan, have the intent and plan to retain/hire Canadian citizens and permanent residents within a reasonably short timeframe.
Complete purchase of a business
When a 100% purchase has been completed and documentary evidence is provided (e.g., share purchase agreement, share certificate, notice of articles, central securities register, shareholding/ownership documents, CRA business number), reflecting purchase/ownership change application, the burden of proof is less onerous. However, requirement on creation or retention of Canadian jobs and knowledge transfer to Canadians in the form of transition plan, still needs to be satisfied.
Pending complete purchase of business
When the current owner intends to sell 100% of the Canadian business to the foreign national/ investor, but completion of purchase/ownership change is contingent on an LMIA and WP, immigration authorities will broadly assess if the anticipatory project is genuine. Key factors include how advanced the transaction is (e.g., signed share purchase agreement, monies in escrow), how sound the foreign employee/investor’s business plan is to acquire 100% ownership the shares of the business as principal owner are and, whether the intent to hire or retain Canadian workers can be established? The existing owner could also submit the LMIA application to hire the foreign national/investor into a specific management position in the business pending purchase, in which case the regular program requirements will apply. The investor can work in that position until the purchase is completed. Once the purchase takes place in the future, the new owner as employer will submit a new LMIA to support an owner/operator management-based work visa/permit.
Partial purchase of a business
When the foreign national/investor has partially purchased a Canadian business but is still not a 100% owner, then the officer will assess who has the largest share in the business to determine if the investor be considered a principal owner or co-owner. Another important consideration is if existing owners/directors will continue to be involved in the business operation and management, why the foreign national’s involvement is required? Is the transaction genuine or in other words is their reasonable employment need?