This article by Andrew Carvajal is part of the Immigration Education Alliance (IMEDA) weekly column titled "Learning Moments".
Hello fellow practitioners. Today’s column deals with one of the employer requirements under the employer-driven programs of the Ontario Immigrant Nominee Program, namely the three years of active business.
My client would like to pursue a nomination through the OINP Employer Job Offer Category (International Student Stream). All eligibility requirements are clearly met, with the exception of one: the employer purchased the company from the previous owner 18 months ago. The business has operated under the same name and at the same location for 25 years. However, my understanding is that the change of ownership would trigger a change in business registration and CRA number, making it a new business on paper.
In particular, I am seeking clarification regarding the eligibility criteria for the employer job offer streams. Namely, the regulation and guidelines indicate that the business must have existed and been active for at least three years before the application is submitted. Can the business be considered to have been active for three years if there was a transfer of ownership 18 months ago?
The employer guidelines don't offer advice on a scenario such as this, but they do suggest that the amalgamation of a company would not impact eligibility under the grounds of "active business." I suspect that I could prepare a submission demonstrating that there has been continuous operation of the business under that name and that the change of ownership has not impacted the employment opportunities of Ontarians.
Our reader is correct that this scenario should qualify as one where the employer has been in active business for the last three years, despite a change in ownership. We do not foresee this being a problem in meeting the employer requirements under the Ontario Immigrant Nominee Program (OINP) and in fact have had a number of clients who have experienced business sales and amalgamations. This is irrespective of whether the new company kept the same name as the old one, the same CRA number (something that is possible), or changed any of those and the tax filing date.
In the case of changes in corporate registration or ownership, it is important to document to the government of Ontario that the company and its predecessors have been operating for at least three years prior to the submission of the OINP application. To do so, we have included the original registration or incorporation documents of the predecessor company and the registration/incorporation documents of the new company. This can also include articles of amalgamation, name change registrations, amongst others. The changes in the corporate structure and continuity of business should also be explained in the submissions included with the application.
At the later stage where the OINP office will request financial documentation from the employer, they will simply request CRA schedules or financial statements for the past three years, including those of the old company(ies) and the new one. As long as these are available and they correspond to the corporate changes that were anticipated, there should not be problems in establishing the three years of active business. Bear in mind that the requirement to meet the minimum revenue will not apply to all three years, only the last taxation year.
In cases of corporate purchases and amalgamations, we have had officers request a letter from the employer confirming three elements that appear in the OINP guidelines, namely: 1) that the business (including its predecessors) have been in active business for at least three years; 2) that any corporate restructuring did/will not affect employment opportunities for Ontarians negatively; and 3) that the job offer made to the OINP applicant is still valid. While our reader could wait and submit this letter when/if requested, there is no harm in submitting it upfront with the application.
One thing that we have not yet experienced with our clients is the situation where the amalgamation or corporate restructuring did in fact affect the employment opportunities of Ontarians, something that would not be unheard of in a case where a firm is acquired by another. In that case, we would suppose that the company would need to provide further information as to the nature and numbers of the job losses associated with the restructuring and satisfy the officer that the position offered to the potential nominee is not part of the positions that were recently replaced, or soon will be replaced. The job losses will also need to be put into perspective depending on the size of the company and the opportunities for new jobs resulting from the corporate restructuring. Not having dealt with this scenario, we are unsure as to how strict the OINP is when assessing these criteria.
Andrew Carvajal is a Toronto lawyer and partner at Desloges Law Group specializing in immigration law, administrative law and Small Claims Court litigation.