This article by Andrew Carvajal is part of the Immigration Education Alliance (IMEDA) weekly column titled "Learning Moments" and published online.
Hello fellow practitioners. Today’s column deals with Owner Operator LMIAs and whether having this type of LMIA provides additional points for “Arranged Employment” under Express Entry.
An investor with no English bought a company, successfully applied for an Owner/Operator LMIA and is currently working in Canada. Can we use the job offer with the company that he owns and operates for additional points for Arranged Employment under Express Entry?
I am assuming that provincial nominee programs and a Canadian Experience Class application are not viable options since he owns all of the shares of the company. However, is there anything preventing us from awarding him an additional 200 points and doing a Federal Skilled Worker application?
Although this was the subject of some debate amongst our colleagues, we have always been of the view that there is nothing in the Ministerial Instructions Respecting the Express Entry System or IRCC’s guidelines that precludes the holder of a valid Owner/Operator LMIA (or work permit support by a valid O/O LMIA) from claiming additional points for arranged employment. Luckily, IRCC has confirmed our understanding of this in a communication with the Immigration Representatives Mailbox. Other colleagues have received similar responses.
The response from IRCC provides as follows:
In cases where a candidate is the owner and employee of the business for which they have a qualifying job offer as per paragraph 29 (2) (a) of the Express Entry Ministerial Instructions (MIs), it is possible that the candidate may receive 200 additional Comprehensive Ranking System (CRS) points for arranged employment in a NOC 00 or 50 points in NOC O, A or B.
However, work in Canada by the owner of the company may be considered “self-employed” work. Should the candidate be considered self-employed, it would not necessarily preclude them from claiming arranged employment in Express Entry, it will however disqualify them from the Canadian Experience Class (CEC). Pursuant to paragraph 15(7)(b) of the MIs and paragraph 87.1(3)(b) of the Regulations, periods of self-employment do not count for purposes of CRS points for “Canadian work experience” or meeting the work experience requirement under the CEC.
The candidate might, as per paragraph 75(2)(a) of the Regulations, qualify under Federal Skilled Worker (FSW) program if the candidate has one year of continuous work as a self-employed person to meet the minimum requirements for FSW, but will not obtain any CRS points as no points are awarded for self-employment, as per paragraph 19(8)(b)of the MIs.
The number of additional points awarded to the applicant will depend on the National Occupational Classification (NOC) of the offered position. 200 points will be awarded for executive/senior managerial offers (NOC 00) and 50 points for NOC, 0, A and B offers. In the case of most Owner/Operators, their occupation in the company is executive/senior managerial.
It is worth noting that in order to upload an Express Entry profile, the applicant will still need to meet the requirements of one of the three federal programs (Federal Skilled Worker, Canadian Experience Class or Federal Skilled Trades). If the applicant does not have any English, as presented by our reader, he will not qualify under any of those programs.
The caution that an owner/operator will not meet the requirements of the Canadian Experience Class and will not be eligible for Canadian work experience points under Express Entry is important. We have seen individuals who have been misinformed by immigration practitioners that an owner/operator LMIA will guarantee them the possibility of applying under the Canadian Experience Class and receiving additional points for Canadian work experience after one year of employment in Canada, which is not true. Banking on those additional points for Canadian work experience, they later realized that they fall short of a competitive score under Express Entry even with the additional 200 points for arranged employment.
Finally, it is worth adding that the same reasoning should apply to the holders of employer-specific work permits who have worked for a Canadian company (full-time) for at least one year. Even if they are majority owners of the company, which excludes them from qualifying under the Canadian Experience Class, they should still be eligible to claim additional points for arranged employment under Express Entry if eligible under the Ministerial Instructions.
Andrew Carvajal is a Toronto lawyer and partner at Desloges Law Group specializing in immigration law, administrative law and Small Claims Court litigation.