Fixing the catch-22 of Canada’s business immigration programs

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In a nutshell

The Immigration Law Section of the Canadian Bar Association is offering comments to Immigration, Refugees and Citizenship Canada (IRCC) in response to its consultation on the future direction of Canada’s federal business immigration programs. IRCC’s business immigration programs currently ask applicants to prove operational progress in Canada that the programs themselves prevent them from making before a work permit is issued. This structural catch-22 is the single greatest source of friction in genuineness assessments, and it should be the starting point for reform.

Key recommendations

The CBA makes numerous suggestions to clarify the business immigration program and make its steps more transparent. Some of these recommendations include:

1. That IRCC publish clear, specific evidentiary criteria for both permanent residence and work permit applications, communicated to applicants at the outset rather than inferred after the fact through litigation.
2. That work permit adjudication for Start-Up Visa applications (SUVs) and related categories be recalibrated so that officers assess applications against standards that a genuine early-stage start-up can actually meet, rather than those of an established business.
3. That IRCC re-open the SUV Open Work Permit for a time- and circumstance-limited window or, in the alternative, provide clear instructions to visa posts to issue C11 and C10 work permits to entrepreneurs in most cases.
4. For SUV team compositions, the CBA recommends special measures that allow founders to switch between essential and non-essential designations or to exit and transfer their shares to a co-founder, without penalizing the remaining group.
5. The CBA also recommends a one-time increase in the number of SUV permanent residence spots to clear the existing backlog.

Why this matters

The steps that would demonstrate an established business operating in Canada – like hiring here and opening up a Canadian bank account - generally cannot be taken without a work permit, and a work permit cannot be obtained without first showing the business is established. Entrepreneurs are asked to prove what the program itself prevents them from proving. A fair system should tell applicants what to expect, give them a genuine opportunity to obtain the status needed to begin building from outside Canada, and reserve its fastest processing for those who demonstrate they have met the standard, not for those who arrived earliest in the queue.

Read the full submission.