Owner/Operator Foreign Workers Must Now Own More Than 50% of Business to Qualify for LMIA Advertising Exemption

the CanadaVisa Team - 31 August, 2016

The government of Canada has made an important change to the owner/operator category of foreign workers who wish to work in Canada. Foreign owner/operators must now own more than 50 percent of the business in order to qualify for an exemption from the advertising requirements that are typically a prerequisite for a Labour Market Impact Assessment (LMIA) application.

Previously, a foreign worker applying to work in Canada on a temporary basis as the owner/operator of a business could own any percentage of the business and qualify for the advertising exemption.

Whereas Canadian employers must usually advertise all job vacancies across the Canadian job market for at least four weeks before applying for a LMIA, employers who wish to hire foreign workers in certain employment categories are subject to a variation in the advertising requirements, which may include — as is the case for eligible owners/operators — an exemption from the requirements altogether.

To qualify as an owner/operator, the foreign national must:

• demonstrate a level of controlling interest in the business, e.g. be a sole proprietor or a majority shareholder;
• demonstrate that such temporary entry will result in the creation or retention of employment opportunities for Canadians and permanent residents and/or skills transfer to Canadians and permanent residents; and,
• not be able to be dismissed.

Although majority shareholder and sole proprietor owner/operators are exempt from the LMIA advertising requirements, a detailed application that satisfies the above points must still be prepared and submitted. It is the advertising requirements of the LMIA — and not the entire LMIA application process itself — that the owner/operator is exempt from.

This latest government change, which is applicable to all provinces of Canada, will likely have the effect of reducing the number of potential applicants who may be exempt from the LMIA advertising requirements under this category. Other changes to the Temporary Foreign Worker Program (TFWP) are expected over the coming months, as the government prepares changes following stakeholder consultations.

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