Learning Moments - Arranged Employment as a Self-Employed Applicant


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 claiming Express Entry points for arranged employment after working for one’s own company under a C11 work permit.


Reader’s question


A person was issued a 2-year work permit that is LMIA exempt under the C11 category of the International Mobility Program. The person’s company, which he owns 50% of, is specified in the work permit as his employer. Will this person be given an additional 200 points for Arranged Employment under Express Entry after he has worked for his company 12 months (provided he otherwise qualifies under the FSW program)?


Answer


A self-employed individual with an LMIA-exempt C11 work permit could in fact claim points for arranged employment under Express Entry, should she/he meet all other requirements as provided in the Ministerial Instructions.


To understand how arranged employment works under Express Entry and what type of applicants with closed work permits are eligible to claim it, we should refer to the Ministerial Instructions respecting the Express Entry system.[1] Particularly, we will refer to section 29(2) (emphasis added):


Qualifying offer of arranged employment


(2) A qualifying offer of employment is one of the following:

(a) an arranged employment as defined in subsection 82(1) of the Regulations, if

(i) the offer is supported by a valid assessment — provided by the Department of Employment and Social Development at the request of the employer or an officer and on the same basis as an assessment provided for the issuance of a work permit — that the requirements set out in subsection 203(1) of the Regulations with respect to the offer have been met,

(ii) the foreign national holds a valid work permit, the offer of employment is made by an employer for whom the foreign national currently works and who is specified on the work permit, the work permit was issued based on a positive determination made by an officer under subsection 203(1) of the Regulations with respect to the foreign national’s employment with that employer in an occupation that is listed in Skill Type 0 Management Occupations or Skill Level A or B of the National Occupational Classification matrix and the assessment provided by the Department of Employment and Social Development on the basis of which the determination was made is not suspended or revoked, or

(iii) the foreign national holds a valid work permit issued under the circumstances described in paragraph 204(a) or (c) or section 205 of the Regulations, the offer is made by an employer who is specified on the work permit and the foreign national works for that employer and has accumulated at least one year of full-time work experience, or the equivalent in part-time work, over a continuous period of work in Canada for that employer;

[…]


To paraphrase the above, for an offer to be eligible under the definition of arranged employment, the offer must:

  • Be made by an employer who obtained a new LMIA that has not expired; OR

  • Be made to an individual who holds a valid work permit (supported by an LMIA), and this individual currently works for the employer named in the work permit, which is also the employer making the offer; OR

  • Be made by an employer which is listed in the employer-specific work permit of an applicant, who in turn has worked for that employer continuously for at least one year full-time (or equivalent in part-time work). In this scenario, the employer-specific (or closed) work permit must have been issued under the authority of sections 204(a), 204(c) or 205 of the IRPR.


A C11 work permit is issued under the authority of section 205(a) of the IRPR, making it eligible under the types of permits listed in the Ministerial Instructions. As long as the applicant has worked for the Canadian employer for at least one year full-time (or the equivalent in part-time work) and the applicant currently holds a closed for permit for that employer, an offer from that company would be eligible for additional points under Express Entry.


There is nothing in the Ministerial Instructions that provides that an offer would not be valid for arranged employment if the applicant owns a majority of the employer, making them self-employed. IRCC has in fact confirmed this understanding in a couple of communications with the Immigration Representatives Mailbox.

On the other hand, self-employment will prevent an applicant for claiming points under Express Entry for Canadian Experience and from qualifying under the Canadian Experience Class (CEC) for permanent residence. Section 15(7)(b) of the Ministerial Instructions and section 87.1(3)(b) of the IRPR provide that periods of self-employment do not award CRS points for “Canadian work experience” or meet the work experience requirements under the CEC.


As a result, our reader’s client will need to be prepared to qualify and apply for permanent residence under the Federal Skilled Worker Program and while she/he will receive additional points for arranged employment, the work in Canada for their own company will not award them CRS points for Canadian or foreign work experience


The number of points awarded to the applicant for arranged employment 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. Assuming that this applicant is likely a senior manager of the business in Canada, they will likely be awarded 200 points.


[1] https://www.canada.ca/en/immigration-refugees-citizenship/corporate/mandate/policies-operational-instructions-agreements/ministerial-instructions/express-entry-application-management-system/current.html


Andrew Carvajal is a Toronto lawyer, partner and Head of Economic Immigration at Desloges Law Group. He specializes in corporate immigration, temporary permits and all types of permanent residence applications for professionals and entrepreneurs.



Twitter: @CarvajalLaw

LinkedIn:linkedin.com/in/carvajalandrew

Email: acarvajal@desloges.ca

#Immigration, #FSW, #EE, #SelfEmployed

Featured Posts
Recent Posts
Archive
Search By Tags
No tags yet.
Follow Us
  • LinkedIn Social Icon
  • Facebook Basic Square
  • Twitter Basic Square

© 2020 by Andrew Carvajal