The following essay was written by Colin R. Singer and appears in Canada’s Immigration & Citizenship Bulletin 20 Imm. & Cit. #8, October 2009; ISSN 0843-7564)
Selection rules for business applicants
As in the case of skilled workers, entrepreneur, and self-employed applicants are required to successfully complete a mandatory pre-screening evaluation.
Under the Regulation respecting the selection of foreign nationals R.S.Q., c. I-0.2, s.3.3, an entrepreneur is defined as a foreign national with at least two years (within the five years preceding the submission of the application) of management experience in a lawful and profitable agricultural, industrial or commercial enterprise who creates, acquires or participates in the active management of a lawful and profitable agricultural, industrial or commercial enterprise that will immediately employ at least one full-time resident of Quebec (30 hours per week), other than the foreign national and his accompanying dependants (R21 (b)). The entrepreneur must control at least 25% of the shares of the new enterprise which must have a value of at least $100,000 of the business in which they participate.
Entrepreneur applicants, along with (self-employed and investors), are assessed under a selection grid comprising of nine major factors of consideration including: education/training, experience, age, language, stay and family in Quebec, financial self-sufficiency, adaptability, financial resources, and business project (R31, 32, 38 Schedule A). However the MICC intends to remove adaptability factor for the economic class.
The allocation of points for each of the factors is outlined in the Regulation respecting the weighting applicable to the selection of foreign nationals, Sub-Class III. Applicants are encouraged to conduct a business exploratory visit with a maximum of five points to be awarded for a business visit of at least one week duration. Successful candidates must obtain 50 out of a possible 110 points with at least 18 points (out of a possible 30) derived from the factor – business project which evaluates the sub-factor - applicant’s ability to carry out a business project in Quebec. Where the business is already in operation, successful candidates must obtain 60 points out of the possible 110 with at least 30 points (out of the possible 30) derived from the sub-factor factor - "acquisition of an enterprise in Quebec”.
To succeed at the pre - selection stage, the applicant must have a minimum of two years of applicable experience in the operation of an enterprise, possess a personal net worth of at least $300,000 acquired legally and have sufficient additional settlement funding to cover the cost of the applicant's first three months of living expenses in Quebec, over and above the business project requirements.
Following a successful pre-selection, entrepreneur applicants are convoked to interview, where the remaining selection factors, including the business project or the acquisition of an enterprise will be assessed. The aptitudes to carry out a business project are assessed under three sub-criteria including, market research; feasibility of the project and financial resources.
Under the federal Immigration and Refugee Protection Act, A9(1)(d), Quebec entrepreneurs and their dependants are subject to terms and conditions of landing which are regulated under Quebec law. However, enforcement and removal issues are federally regulated pursuant to R98(1)(2) Immigration and Refugee Protection Regulations.
An investor is defined as a foreign national with at least two years in the five years preceding the application, of management experience (duties related to the planning, management and control of financial resources and of human or material resources under the investor’s authority, provided that such responsibilities and duties are not assumed in the context of an apprenticeship, training, or specialization process attested to by a diploma) in a legal farming, commercial or industrial business, or a suitable legal professional business (whose personnel include at least two full time employees excluding the owner and his spouse), or a government department who alone or with his accompanying spouse or de facto spouse and has net assets of at least $800,000 obtained legally, excluding amounts received by gift within the period of six months prior to the submission of an application and who undertakes to invest $400,000 for five years, in a prescribed investment (R1 (e.2), R21 (d), R34.1).
Recent legislative and policy changes have given investor’s management experience a more liberal application than historically applied in order to allow professionals such as doctors, dentists, pharmacists, accountants, lawyers and engineers who operate their own professional practices, which employ at least two full-time personnel, to qualify as an investor. Under previous policy such practitioners were excluded.
Quebec promotes its own $400,000 immigrant investor program under the authority of the Canada-Quebec Accord and the federal Immigration and Refugee Protection Regulations. The prescribed investment is irrevocably deposited into an escrow account with a licensed investment dealer or a financial institution acting as the fund manager on behalf of the investor.
The Quebec program is virtually the same as the federal program with the following important distinctions: immigrant investment proceeds is allocated to Quebec and guaranteed by way of a promissory note issued by Investissement Québec, a Quebec government owned corporation; suitable management experience can derive from a commercial, industrial, professional or a government agency; and the five-year investment period begins immediately following Quebec approval which often takes place long before the investor comes to Canada. If the investor is refused by the federal authorities for a medical or security inadmissibility, the investment less applicable financing charges is refunded.
Historically, the Quebec investor program has been far more popular than the federal program because the MICC and Quebec brokers work closely with agents from source countries; concludes applications much faster and brokers are able to pay 12.5% commission fees immediately following Quebec approval.
In 2007, Quebec received 1700 investments totaling $680,000,000. In 2008 Quebec received $580,000,000 from 1450 investments. In February 2009 on the strength of enhanced processing procedures for investors the MICC has ambitiously targeted 2400 investments for current and subsequent years (source: Investissement Québec).
Self – Employed
Self-employed applicants are primarily differentiated from skilled worker applicants in that to qualify the self-employed must have two years of applicable experience, possess a personal net worth of $100,000, have sufficient settlement funding and will come to Québec to create employment for the applicant by practicing a profession defined in the National Occupational Classification, Regulation respecting the weighting applicable to the selection of foreign nationals, Sub-Class II, (R21(c)). Prospective applicants must also meet applicable occupational entry or licensing requirements.
Like skilled workers, the self-employed applicant is assessed under a selection grid (R31, R32, Schedule A), comprised of nine factors. Successful single applicants must obtain 38 points out of a possible 75 points during pre-selection and 44 points out of a possible 81 points on selection. Applicants with a spouse or de facto spouse must obtain 45 points out of a possible 87 points at pre-selection and 51 points out of a possible 93 points at selection.
As a general rule, applicants intending to settle in the province of Quebec are required to file an application for a Quebec Certificate of Selection with one of seven Quebec government offices located outside of Canada. Once an application has proceeded to a positive selection decision, the applicant is invited to submit an application for permanent residence with a Canadian visa office outside Canada. Once the applicant has successfully completed the federal statutory verification process comprising of health and security, the final disposition of the application will lead to visa issuance.
The filing procedures and documentation required vary substantially between Quebec government offices.
Processing delays vary significantly between Quebec government offices and between source countries within a particular territory. These variations are largely dependent upon the size of a territory, the availability of simultaneous processing procedures at a visa office, the number of Quebec area mission trips being conducted within a particular territory and Ministerial directives that are occasionally implemented. There has been a steady increase in the numbers of applications being filed through certain Quebec offices (such as Hong Kong, Paris, Montreal and Damascus) with corresponding lengthy delays to approval that historically have approached 30 months at such missions.
However, the Quebec government has recently undertaken several measures to accelerate the process while ensuring overall program integrity. This has resulted in processing delays being reduced to 6-9 months to Quebec approval.
Additionally, business applicants from selected territories (investor and entrepreneur) who are willing may opt for a Montreal based selection interview which can significantly reduce overall processing times.
It is interesting to note that the MICC acknowledges the role of Quebec immigration lawyers and allows for an applicant to be assisted by a member of the Quebec Bar during the selection interview.
Contesting refused applications
The Quebec Superior Court in virtue of its superintending and reforming powers emanating from the rules of common law and Section 33 of the Quebec Code of Civil Procedure is the court of jurisdiction to contest by way of motion (evocation, mandamus, declaratory relief, etc.), administrative decisions emanating from the MICC refusing applications for certificates of selection. Such motions must be instituted within a reasonable delay from the final decision giving rise to the recourse. Given the complexities often surrounding an overseas immigration matter, delays of six months to institute such recourse in Quebec Superior Court following a refusal, is permissible.
Applicants must first proceed with an administrative review process by filing a request for reconsideration within 90 days from refusal. This is an informal process which in more than 70% of the cases upholds the initial refusal.
The use of directives
The MICC manages its immigration program through the use of policies, guidelines and directives most of which appear in the Guide des procédures de d’immigration (“GPI”). The Quebec Court of Appeal has held that these guidelines are binding on the MICC.
The following has been prepared by Colin R. Singer, Attorney At Law, for the intended reference by interested individuals and is not intended to create an attorney-client communication. This writing may be reproduced for the personal non commercial use of interested individuals on the express or implied condition that the contents herein are neither edited, modified nor altered in whole or in part, directly or indirectly without the express written consent of the author herein.
(Canadian Immigration and Employment Law)