One of the less understood recruitment exemptions in the Labour Market Impact Assessment stream is the exemption for Owner / Operators of a business. The Employment and Social Development Canada website states:
Description: The owner/operator must demonstrate that he is integral to the day-to-day operation of the business and will be actively involved in business processes/service delivery in Canada. In such instances, greater consideration should be given to demonstration by the applicant (owner/operator) 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.
Variation: No advertising or recruitment is required.
Applicability: All Provinces
The Temporary Foreign Worker Program Manual previously stated:
The ESDC wiki currently states:
The wiki makes it clear that the following key conditions apply to Owner / Operator LMIAs:
- ESDC must be satisfied that the foreign national is or will be a principal owner or co-owner of the business in Canada.
- The company must prove the foreign natinoal’s shareholdings.
- When assessing labour market factors, the focus is on job creation/retention and/or skills transfer. For co-owners, the focus is on job creation / retention and/or skills transfer.
- For High-Wage Owner-operator applications, Transition Plans apply.
- For Low-Wage, the caps apply.
- Confirmations can be for one year or less.
The wiki goes on to address whether start-up companies can do owner-operator LMIAs, including where the company does not exist.
While the amount of redactions are frustrating, regardless of what the ESDC website and the Temporary Foreign Worker Program Manual / wiki states, the reality is that this is a very rarely used exemption. The website, and especially the Temporary Foreign Worker Program Manual (which is internal and so of course cannot give rise to a legitimate expectation) are merely guides in the application of this highly discretionary process. While it is highly discretionary, I have always found that ESDC officers exercise this discretion fairly.