As a general rule, in the context of a Labour Market Impact Assessment (LMIA) application, evidence of a satisfactory Canadian recruitment strategy is needed to satisfy Employment and Social Development Canada (ESDC) that there is a shortage of Canadians eligible for a specific position of employment. However, there are situations in which exemptions exist. One example of an exemption is for Owner/Operators of a business in Canada. ESDC has recently changed the definition of this exemption following a period of re-assessment.
Previously, the Temporary Foreign Worker (TFW) needed to be considered to be an owner of the business that is integral to its day to day operations. However, the level of share ownership was not defined. Following the 2014 overhaul of the TFW program, ESDC saw a dramatic increase in the number of Owner/Operator applications and it was clear that a significant portion of them constituted cases in which the TFW recently received shares in the business. The new definition of the requirement, therefore, is that the TFW must have a controlling interest in the business, and this translates to a majority stake in the share ownership. It must not be possible for the TFW to have such employment terminated as well.
As always, the viability of an Owner/Operator case remains based on the impact on the Canadian labour market. In these cases, it will be necessary to satisfy the government that there is a direct creation or retention of Canadian employment and/or that there is a transfer of skills to Canadians as a result of the employment of the TFW.