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Immigration and Refugee Protection Regulations (SOR/2002-227)

Regulations are current to 2024-02-06 and last amended on 2023-12-19. Previous Versions

PART 6Economic Classes (continued)

DIVISION 2Business Immigrants (continued)

Start-up Business Class (continued)

Marginal note:Form of commitment

  •  (1) A commitment must be in a written or electronic form that is acceptable to the Minister and must be provided by a person who has the authority to bind the designated entity.

  • Marginal note:No fee for commitment

    (2) A commitment does not respect these Regulations if the entity that made it charges a fee to review and assess the business proposal or to assess the business.

  • Marginal note:Multiple applicants

    (3) If there is more than one applicant in respect of a commitment, the commitment must

    • (a) include information on each applicant; and

    • (b) identify those applicants that the entity making the commitment considers essential to the business.

  • Marginal note:Conditional commitment

    (4) If there is more than one applicant in respect of a commitment, the commitment may be conditional on the issuance of a permanent resident visa to one or more of those applicants.

  • SOR/2018-72, s. 3

Marginal note:Minimum investment

  •  (1) The Minister must establish the minimum total amount that the designated entities involved in the commitment must invest by buying shares or other forms of equity in the applicant’s business.

  • Marginal note:Types of entities

    (2) The Minister may establish different minimum investment amounts based on whether the commitment was made by a business incubator, an angel investor group or a venture capital fund and, for commitments involving more than one type of entity, may specify different minimum investment amounts for commitments involving different combinations of entity types.

  • Marginal note:Factors

    (3) The Minister must establish the minimum investment amount on the basis of the following factors:

    • (a) the number or projected number of start-up business class applicants and designated entities;

    • (b) the proportion per year of start-up business class applications approved, withdrawn or refused, as well as the grounds for refusal;

    • (c) the amount of investment received per year by start-up business class applicants from designated entities as part of a commitment;

    • (d) the number, type and industry sector of businesses started in Canada by approved start-up business class applicants per year and the average investment needs of start-up businesses of those types in those industry sectors;

    • (e) the average amount of investment and number of investments made in start-up companies in Canada per year;

    • (f) the level of investment usually required for a business started in Canada by a member of the start-up business class to be successful and for the member of the class to become economically established in Canada; and

    • (g) industry standards and best practices, as determined in consultation with organizations referred to in section 98.02, designated entities or other relevant stakeholders.

  • Marginal note:Public notice

    (4) The Minister must publish the amounts established under subsection (1) on the Department’s website.

  • SOR/2018-72, s. 3

Marginal note:Qualifying business

  •  (1) For the purposes of paragraph 98.01(2)(d), a qualifying business with respect to an applicant is one

    • (a) in which the applicant provides active and ongoing management from within Canada;

    • (b) for which an essential part of its operations is conducted in Canada;

    • (c) that is incorporated in Canada; and

    • (d) that has an ownership structure that complies with the percentages established under subsection (3).

  • Marginal note:Exception — intention

    (2) A business that fails to meet one or more of the requirements of paragraphs (1)(a) to (c) is nevertheless a qualifying business if the applicant intends to have it meet those requirements after they have been issued a permanent resident visa.

  • Marginal note:Ownership structure

    (3) The Minister must establish

    • (a) the minimum percentage of voting rights that are attached to all the outstanding shares of the corporation that must be held by the applicant; and

    • (b) the maximum percentage of the total amount of the voting rights attached to all the outstanding shares of the corporation that may be held by persons or entities, other than qualified participants.

  • Marginal note:Qualified participant

    (4) For the purpose of paragraph (3)(b), a qualified participant is

    • (a) an applicant in respect of the business;

    • (b) a foreign national who has been issued a permanent resident visa as a member of the start-up business class in respect of the business; or

    • (c) a designated entity.

  • Marginal note:Factors

    (5) The Minister must establish the percentages referred to in subsection (3) on the basis of the following factors:

    • (a) the number or projected number of start-up business class applicants and designated entities;

    • (b) the proportion per year of start-up business class applications approved, withdrawn or refused, as well as the grounds for refusal;

    • (c) the average size of businesses for which commitments are made and the average percentage of voting rights held by applicants and designated entities;

    • (d) the average size of start-up companies in Canada and the average percentage of voting rights held by the founders of those companies and other investors in those companies;

    • (e) the number, type and industry sector of businesses successfully started in Canada by approved start-up business class applicants per year and the most common ownership structures for businesses of those types in those industry sectors;

    • (f) the ownership share usually required for a business started in Canada by a member of the start-up business class to be successful and for the member of the class to become economically established in Canada; and

    • (g) industry standards and best practices, as determined in consultation with organizations referred to in section 98.02, designated entities or other relevant stakeholders.

  • Marginal note:Public notice

    (6) The Minister must publish the percentages established under subsection (3) on the Department’s website.

  • SOR/2018-72, s. 3

Marginal note:Documentation

  •  (1) An applicant must provide documentation to establish that they are a member of the start-up business class, including

    • (a) written or electronic evidence, provided by an entity that was designated on the day on which the application is made, that indicates that the entity made a commitment with the applicant;

    • (b) the results of a language proficiency evaluation referred to in paragraph 98.01(2)(b); and

    • (c) written or electronic evidence that they have the funds required under paragraph 98.01(2)(c).

  • Marginal note:Production of other documents

    (2) In evaluating an application in the start-up business class, an officer may, in addition to these documents, require the production of documents that are in the possession or control of the applicant or of the entity making the commitment and that relate to the applicant, the commitment or the business.

  • SOR/2018-72, s. 3

Marginal note:Assessment of commitment

  •  (1) If the officer is not satisfied that the entity assessed the applicant and the applicant’s business in a manner consistent with industry standards or is not satisfied that the terms of the commitment are consistent with industry standards, the officer may refuse to issue the permanent resident visa.

  • Marginal note:Multiple applicants

    (2) If there is more than one applicant in respect of the same business and one of the applicants who was identified in the commitment as being essential to the business is refused a permanent resident visa for any reason or withdraws their application, the other applicants must be considered not to have met the requirements of subsection 98.01(2) and their permanent resident visa must also be refused.

  • SOR/2018-72, s. 3

Marginal note:Peer review

  •  (1) An officer may request that a commitment, the applicants and designated entities party to the commitment and the qualifying business to which the commitment relates be independently assessed by a peer review panel established under an agreement referred to in section 98.02 by an organization that has expertise with respect to the type of entity making the commitment.

  • Marginal note:Grounds for request

    (2) The request may be made if the officer is of the opinion that an independent assessment would assist in the application process. The request may also be made on a random basis.

  • Marginal note:Independent assessment

    (3) The peer review panel’s assessment must be independent and take industry standards into account.

  • Marginal note:Assessment not binding

    (4) An officer who requests an independent assessment is not bound by it.

  • SOR/2018-72, s. 3

Marginal note:Substituted evaluation

  •  (1) An officer may substitute their evaluation of the applicant’s ability to become economically established in Canada for the requirements set out in subsection 98.01(2), if meeting or failing to meet those requirements is not a sufficient indicator of whether the applicant will become economically established in Canada.

  • Marginal note:Exception

    (2) However, a substitute evaluation must not be conducted for an applicant who did not have a commitment from a designated entity on the day on which they made their application.

  • Marginal note:Concurrence

    (3) A substitute evaluation made under subsection (1) requires the written concurrence of a second officer.

  • SOR/2018-72, s. 3

Marginal note:Inspections — organization

  •  (1) An officer may inspect any organization that has entered into an agreement referred to in subsection 98.02(1) in any of the following circumstances:

    • (a) the officer has a reason to suspect that the organization is not complying or has not complied with any of the conditions set out in subsection 98.02(3);

    • (b) the organization has not complied with those conditions in the past;

    • (c) the organization is chosen as part of a random verification of compliance with those conditions; and

    • (d) as part of routine monitoring activities, the organization is monitored to ensure that it respects those conditions.

  • Marginal note:Inspections — designated entity

    (2) An officer may inspect an entity designated under subsection 98.03(1) in any of the following circumstances:

    • (a) the officer has a reason to suspect that the entity is not complying or has not complied with any of the conditions set out in subsection 98.03(3);

    • (b) the entity has not complied with those conditions in the past;

    • (c) the entity is chosen as part of a random verification of compliance with those conditions; and

    • (d) as part of routine monitoring activities, the entity is monitored to ensure that it respects those conditions.

  • Marginal note:Other inspection

    (3) In addition, the powers set out in sections 98.12 and 98.13 may be exercised with respect to

    • (a) a designated entity, if an officer is inspecting an organization in accordance with subsection (1) and an inspection of the designated entity is necessary to verify that the organization is in compliance with the conditions set out in subsection 98.02(3); or

    • (b) an organization that has entered into an agreement referred to in subsection 98.02(1), if an officer is inspecting a designated entity in accordance with subsection (2) and an inspection of the organization is necessary to verify that the designated entity is in compliance with the conditions set out in subsection 98.03(3).

  • Marginal note:Inspections — business

    (4) The powers set out in sections 98.12 and 98.13 may be exercised with respect to a business that is the subject of a commitment by a designated entity with respect to the start-up business class if an officer is inspecting that designated entity in accordance with subsection (2) and an inspection of the business is necessary to verify that the designated entity is in compliance with the conditions set out in subsection 98.03(3).

  • Marginal note:Inspections — third party

    (5) The powers set out in section 98.12 may be exercised with respect to a third party if an officer is inspecting an organization in accordance with subsection (1) or a designated entity in accordance with subsection (2) and an inspection of the third party is necessary to verify that that organization or that designated entity is in compliance with the conditions set out in subsection 98.02(3) or 98.03(3), as the case may be.

  • SOR/2018-72, s. 3

Marginal note:Answering questions and providing documents

  •  (1) When conducting an inspection in accordance with section 98.11, an officer may, for the purpose of verifying that the organization or designated entity is in compliance with the relevant conditions,

    • (a) require the organization, the designated entity, a business that is the subject of a commitment or a third party to provide the officer with any relevant document; and

    • (b)  require any employee or representative of the organization, designated entity, or a business that is the subject of a commitment or a third party to report at any specified time and place to answer questions and provide relevant documents.

  • Marginal note:Justification

    (2) A failure to comply with an obligation under paragraph (1)(a) or (b) is justified if the person, organization, entity or business made all reasonable efforts to comply with the obligation or if the failure results from anything done or omitted to be done by them in good faith.

  • SOR/2018-72, s. 3

Marginal note:Entry to verify compliance

  •  (1) Subject to subsection (7), when conducting an inspection in accordance with section 98.11, an officer may, for the purpose of verifying that the organization or designated entity is in compliance with the relevant conditions, enter and inspect any premises or place in which business is conducted by the organization, the designated entity or a business that is the subject of a commitment.

  • Marginal note:Powers in place or on premises

    (2) When on the premises or in the place the officer may

    • (a) ask any relevant questions of an employee or representative of the organization, designated entity or business that is the subject of a commitment;

    • (b) require from the organization, the designated entity or the business that is the subject of a commitment any relevant documents found in the premises or the place for examination;

    • (c) use copying equipment, or require that the organization, the designated entity or the business that is the subject of a commitment provide copies of those documents to be examined away from the premises or the place or, if it is not possible to make copies in the premises or the place, remove the relevant documents to make copies;

    • (d) take photographs and make video or audio recordings;

    • (e) examine anything in the premises or the place;

    • (f) require the organization, the designated entity or the business that is the subject of a commitment to use any computer or other electronic device in the premises or the place to allow the officer to examine any relevant document contained in or available to it; and

    • (g) be accompanied or assisted in the premises or the place by any person required by the officer.

  • Marginal note:Obligation

    (3) An organization, entity, or a business that is the subject of a commitment, must, on request, provide an employee or representative to attend any inspection referred to in subsection (1), to give all reasonable assistance to the officer conducting that inspection and to provide that officer with any document or information that the officer requires.

  • Marginal note:Justification

    (4) A failure to comply with an obligation under paragraph (2)(b), (c) or (f) or subsection (3) is justified if the organization, entity, or a business that is the subject of a commitment made all reasonable efforts to comply with the obligation or if the failure results from anything done or omitted to be done by them in good faith.

  • Marginal note:Entering private property

    (5) An officer and any person accompanying the officer may enter on and pass through private property, other than a dwelling-house, to gain entry to the premises or the place. For greater certainty, they are not liable for doing so.

  • Marginal note:Person accompanying officer

    (6) A person may, at an officer’s request, accompany the officer to assist them to access the premises or the place.

  • Marginal note:Dwelling-house

    (7) In the case of a dwelling-house, an officer may enter it without the occupant’s consent only under the authority of a warrant issued under subsection (8).

  • Marginal note:Issuance of warrant

    (8) On ex parte application, a justice of the peace may issue a warrant authorizing an officer who is named in it to enter a dwelling-house, subject to any conditions specified in the warrant, if the justice of the peace is satisfied by information on oath that

    • (a) there are reasonable grounds to believe that the dwelling-house is a premises or place referred to in subsection (1);

    • (b) entry into the dwelling-house is necessary to verify compliance with the conditions set out in subsection 98.02(3) or 98.03(3), as the case may be; and

    • (c) entry was refused by the occupant or there are reasonable grounds to believe that entry will be refused or that consent to entry cannot be obtained from the occupant.

  • SOR/2018-72, s. 3
 

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