On April 18, 2012, Citizenship, Immigration and Multiculturalism Minister Jason Kenney launched consultations on the possible creation of a new program to attract immigrant entrepreneurs. Citizenship and Immigration Canada (“CIC”) will consult with industry associations in the development of a “start-up” visa program for innovative entrepreneurs in the coming months.

A “start-up” visa program differs from existing investor and entrepreneur options to the extent that the entrepreneur is not required to be the source of investment capital. Such a program would enable entrepreneurs who establish start-up businesses using capital contributed by third parties, such as venture capital firms or angel investors, to seek permanent residence in Canada.

Although the Government is only initiating consultations at this point, the proposed “start-up” visa program may ultimately resemble S. 565: StartUp Visa Act of 2011 (introduced in the United States Senate on March 14, 2011) and H.R. 1114: StartUp Visa Act of 2011 (introduced in the United States House of Representatives on March 15, 2011). S. 565 and H.R. 1114 (collectively, the “StartUp Visa Bills”) offer three options for immigrant entrepreneurs:

1. Immigrant entrepreneurs living outside the U.S. would be eligible to apply for a StartUp Visa if a qualified U.S. investor agreed to financially sponsor their entrepreneurial venture with a minimum investment of $100,000. After two years, their business must have created 5 new jobs and raised not less than $500,000 in additional capital investment or generate not less than $500,000 in revenue.
2. Immigrant entrepreneurs currently in the U.S.: (1) on an unexpired H-1B; or (2) who have completed a graduate level degree in science, technology, engineering, math, computer science, or other relevant academic discipline from an accredited United States college, university, or other institution of higher education would be eligible for a StartUp Visa if:
   • They demonstrate annual income of not less than 250 percent of the Federal poverty level or the possession of assets of not less than 2 years of income at 250 percent of the Federal poverty level; and
   • Have proven that a qualified U.S. investor agrees to financially back their entrepreneurial venture with a minimum investment of $20,000.

   After two years, their business must have created 3 new jobs and raised not less than $100,000 in additional capital investment or generate not less than $100,000 in revenue.

3. Immigrant entrepreneurs living outside the U.S. would be eligible to apply for a StartUp Visa if they have controlling interest of a company in a foreign country that has generated, during the most recent 12-month period, not less than $100,000 in revenue from sales in the U.S. After two years, their business must have created 3 new jobs and raised not less than $100,000 in additional capital investment or generate not less than $100,000 in revenue.

Although these StartUp Visa Bills are unlikely to be passed by Congress, it is hoped that the Government of Canada will implement its own “start-up” visa program soon. If it does, it will gain a significant competitive advantage over the United States.

According to CIC, this “start-up” visa initiative is an example of the type of small-scale programs that would allow it to try innovative approaches to economic immigration. Under the proposed changes, CIC can create new, short-term programs under the Economic Immigration Class. These programs would be limited to no more than 2,750 applications per year and would end after five years. If a program proves successful during the five-year trial period and CIC wishes to maintain it, it would be required to formally introduce the new economic class in the Immigration and Refugee Protection Regulations.

On April 16, 2012, Citizenship, Immigration and Multiculturalism Minister Jason Kenney announced that Citizenship and Immigration Canada (“CIC”) intended to reduce the work experience requirement for eligible temporary foreign workers seeking permanent residence under the Canadian Experience Class (“CEC”). According to CIC, this will make it easier for skilled tradespersons working in Canada to transition to permanent residence as their work is often project-based and can be seasonal.

The CEC was established on September 17, 2008. It allows temporary foreign workers and international graduates to apply for permanent residence without a job offer, if certain conditions are met. The above announcement applies to the temporary foreign worker subcategory of the CEC.

To qualify as a temporary foreign worker under the current CEC, applicants must meet the following minimum requirements:

1. They must plan to live outside the Province of Quebec;
2. They must be a temporary foreign worker with at least two years of full-time (or equivalent) skilled work experience in Canada;
3. They must have gained experience in Canada with the proper work authorization;
4. They must have sufficient English or French language ability; and
5. They must apply under the CEC while working in Canada or within one year of leaving their job in Canada.

Under the proposed regulatory changes, the requirement of two years of full-time (or equivalent) skilled work experience in Canada would be reduced to one year; full-time work experience means working at least 37.5 paid hours per week. However, all other requirements of the CEC would continue to apply.

Further details about the proposed changes to the Canadian Experience Class will be announced later in 2012.

On April 11, 2012, Citizenship, Immigration and Multiculturalism Minister Jason Kenney announced changes to Canada’s Provincial Nominee Programs (“PNPs”). As of July 1, 2012, most PNP applicants for semi-skilled and low-skilled professions will have to undergo mandatory language testing of their listening, speaking, reading and writing abilities and meet a minimum standard across all four of these categories before they can qualify for a nomination certificate.

PNPs are established under Section 87(1) of the Immigration and Refugee Protection Regulations (“IRPR”). A PNP is similar but distinct from the Quebec Skilled Worker Program, which is established under IRPR 86(1). Both the Quebec Skilled Worker Program and the PNPs offer the provinces an opportunity to select immigrants based on their specific needs.

Under a PNP, individuals nominated by the province, together with their spouse and dependent children, are eligible to apply for Canadian permanent residence through CIC under the Provincial Nominee Class. CIC will also give priority to processing permanent resident visa applications filed by provincial nominees. Given the considerable delays encountered by many Canadian permanent residence applicants, this priority processing makes immigration under a PNP program desirable.

Under the Provincial Nominee Class, each province establishes its own selection criteria. Applicants who wish to immigrate to a specific province as a provincial nominee, must first apply to the province where they wish to settle. The province will consider the application based on their immigration needs and the applicant’s intention to settle there. If the applicant is approved, he or she will be given a provincial nomination certificate, which may be used to support an application for permanent residence.

Although there has been a trend to require mandatory language testing for federal economic immigrants, PNP programs have not yet imposed mandatory language testing on all PNP applicants. However, Minister Kenney’s announcement makes clear that language testing will be imposed, at least on semi-skilled and low-skilled PNP applicants, commencing on July 1, 2012.

During the Government of Canada’s 2012 Budget Speech, the Minister of Finance announced that, in an effort to deal with the backlog of pending Federal Skilled Worker (“FSW”) cases, it would enact legislation to cancel all applications filed prior to February 27, 2008. This is proposed legislation only but it will be retroactive to March 29, 2012; as a result, it should be treated as though it were already in force.

Under proposed legislation, Citizenship and Immigration Canada (“CIC”) will close the files of FSW applicants who applied before February 27, 2008, and for whom an immigration officer has not already made a decision based on the applicable selection criteria by March 29, 2012. This proposed legislation is expected to affect about 280,000 applicants, including their dependants.

CIC will begin the process of returning the full amount of fees previously paid by these affected FSW applicants, which could amount to $130 Million. For those who have already passed the selection criteria stage as of March 29, 2012 (approximately 20,000 people), CIC will continue processing their applications.

Several Provincial Nominee Programs (“PNPs”) are currently reviewing the backlog of pending FSW applications to determine if any of them might be suitable for PNP nomination. For example, Opportunities Ontario has established a FSW Pilot Program (the “FSW Pilot”) to accommodate these potential nominees.

Under the Ontario FSW Pilot, FSW applicants who fall under one of the following five occupations will have an opportunity to apply for an Ontario nomination leading to permanent residence:

1. Computer Analysts and Consultants (NOC 2171);
2. Software Developers (NOC 2173);
3. Interactive Media Programmers and Developers (NOC 2174);
4. Financial and Investment Analysts (NOC 1112); and
5. Mathematicians (NOC 2161).

CIC began contacting FSW applicants in these occupations in February 2012, inviting them to participate in the FSW Pilot. Applicants who are invited to participate in the FSW Pilot must submit their applications to Opportunities Ontario by May 4, 2012.

Applicants who are not invited by a PNP to seek a provincial nomination certificate have effectively lost their ability to immigrate to Canada based on their pending FSW application. However, they can consider filing a new application under another permanent residence category, if they qualify.