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Should I Apply as an Essential Applicant Under the Start Up Visa Program?

By

Upasana Sharma

Posted

January 04, 2022

at

08:52 PM

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I am often asked the question about obtaining a work permit under the Start Up Visa program while awaiting the applicants PR and what happens if the work permit is refused, does that mean the project comes to a halt?

I have seen marketing pieces claiming that anyone can apply for the work permit. While that is true to an extent, to apply for a work permit it requires the person to be seen as an essential applicant. The question then is what ultimately happens if that person’s application is refused? What happens to the other co-founders?

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An interesting set of questions, to which I am pleased to respond.

It is always vital in these situations to start with the exact requirements of the Immigration Regulations. For this situation, the SUV Regulations state:

  • 98.08 (2) Multiple applicants

(2) If there is more than one applicant in respect of the same business and one of the applicants who was identified in the commitment as being essential to the business is refused a permanent resident visa for any reason or withdraws their application, the other applicants must be considered not to have met the requirements of subsection 98.01(2) and their permanent resident visa must also be refused.

SOR/2018-72, s. 3

More simply put, with multiple essential partners in an SUV project, if one is refused PR then all will be refused their PR. This is critical and if this has not been disclosed to you, you need to question your Immigration Consultant or Immigration Lawyer as to why not?

However, what happens if a person applies for a work permit, but gets refused? Does that mean their application will not be ultimately accepted? Should that person continue with their PR application?

The answer is yes, they should continue. The SUV Work Permit is not included as part of the SUV Regulations. The SUV Work Permit is governed by policy and the SUV Work Permit is issued under the provisions of Regulation 205 (a) - Significant Benefit to Canada - Canadian Interests.

The policy sets out that SUV applicants may apply for and may be granted a one (1) year Work Permit if they have received a Commitment Certificate/Letter of Support to facilitate their entry to Canada if the designated entity supports the request for a Work Permit.

The SUV Work Permit policy states:

To be eligible for a Start-up Business Class Work Permit, the following requirements must be met:

- the applicant must intend to reside in a province or territory other than Quebec.

- an Offer of Employment to a Foreign National Exempt from a Labour Market Impact Assessment (LMIA) [IMM5802] has been completed by foreign national as ‘self-employed’ and the form and employer compliance fee have been submitted to IRCC.

- a Commitment Certificate must have been issued by a designated entity indicating that the work permit applicant is “essential” and there are urgent business reasons for the applicant’s early entry to Canada (i.e., section 8.0 of the Commitment Certificate is completed).

- letter of support linked to a Commitment Certificate has been issued by a designated entity.

- the applicant must have sufficient funds to meet the low income cut off for their family size for 52 weeks.

Again, to put more simply, the application and approval or refusal of an SUV Work Permit is entirely separate and apart from the requirements of the SUV Regulations for Canadian permanent resident visa issuance.

Every application for a Work Permit under R 205 (a) must be treated as an independent application. Therefore, the refusal of one SUV Work Permit application where there are multiple partners in an SUV project does not mean that the other partners Work Permits must be denied.

It is correct to state that the SUV PR and the SUV Work Permit applications are two separate and distinct application processes, governed by different parts of the Regulations and policy.

This being said, the reasons for a refusal of an SUV Work Permit may be factors in the officer's review of that individual's PR application. For example, if the WP was refused as a result of a failure to meet the SUV Work Permit basic requirements as set out above; or on a security, criminality, medical or previous Canadian immigration violation problem, then these same reasons will be taken into consideration in the review of the PR application, and may result in a refusal decision.

So someone may wonder what happens if they are going to be essential to the project, but choose not to apply to a work permit. Will that cause problems?

It is open and possible for a partner designated as essential to choose not to apply for an SUV Work Permit. In such a case, it would be important for the designated entity to provide a detailed explanation in the Commitment Certificate as to why some, but not all, of the partners in the SUV project are required to enter Canada on a SUV Work Permit.

Again, put more simply, a significant problem might be created if the designated entity supported the Work Permit issuance for all of the essential partners in a project, but one of those essential partners then chose not to apply for the Work Permit.

Consistency, while the hobgoblin of small minds, is essential in all phases of the SUV process.

Issuance of a Work Permit does not require any SUV applicant to be physically present in Canada during the entire one-year validity period of the SUV Work Permit. Work Permit holders are free to come and go as they choose. When a partner receives their approval letter, they must travel to Canada at least once to be issued with their SUV Work Permit document.

While getting an SUV Work Permit may be an important indicator of the commitment and bona-fides of an applicant, the successful approval of the underlying SUV PR applications will depend on the substantive work the partners can prove on their SUV project. The critical period for this work lies in the period between the Commitment Certificate (and Work Permit if applicable) issuance and final review of the PR applications by an officer. It is the content and substantiality of this work which will decide the decision on the PR applications, not where the work took place.

Find out more about how the entire Start Up Visa Process in Canada:

Investor Quotient Canada is a premier professional services firm offering a suite of business, legal, logistical and related services to foreign innovators and entities looking to establish and/or expand their operations into Canada or invest in Canadian businesses.

Contact Upasana Sharma to schedule a consultation to learn about which program best suits your investment needs.

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