Archives for August 2001

Q. Now that I am on a work visa (1 year work permit after graduation), I wonder if I have to pay the federal taxes they deduct from my paycheck? I am still not a resident of Canada.

Answer: It is first important to remember that the term “resident of Canada” for immigration purpose and for tax purposes may not have the same meaning. You may be considered a resident of Canada for tax purposes even though you are not yet a resident of Canada for immigration purposes. Whether you are resident in Canada or not for income tax purposes will depend on your particular facts.

In addition, if you spent 183 days or more in Canada in the year, you are deemed to be, for tax purposes, a resident of Canada and subject to tax in Canada on your worldwide income for the entire year even if you are not otherwise resident in Canada.

Even if you are considered as a non-resident for tax purposes, you will still be subject to tax in Canada on your employment income if it is earned in Canada. If the expected employment income to be earned in Canada exceeds your available income tax credits, you will be subject to withholding taxes on your pay check.

If you are also a resident of a country which has an income tax treaty with Canada, you may be exempt from Canadian taxation on your employment income earned in Canada if it is below a certain amount and if you meet other conditions. If this exemption is available to you, your employer should be notified.

The nature of this facility is to provide a general response to a general question. Under no circumstances should anyone act on this information without obtaining analysis and counsel from a qualified advisor with respect to the specific situation.

Phillip Nadler, CA
Richter Usher & Vineberg
http://www.richter.ca

Q. Do you have any suggestions for improving the chances of successful application for a candidate who does not score high points in the Skilled Worker category?

Answer: There are two possible approaches under the present selection criteria:

1. Arranged employment in Canada. This would require either a validated job offer from a Canadian employer, or a job offer from a close family member within Canada that can be certified by a local CIC.

2. Positive Discretion. This would entail demonstrating to an officer that the applicant has a high likelihood of successfully settling in Canada which is not reflected in the points assessed in her case. This is highly risky.

Bill C-11 was adopted by the House of Commons (3rd reading) and was introduced in the Senate in June 2001. There will be no official movement on the Bill until the resumption of the Senate’s session in September of 2001 .

The following is a summary of the provisions proposed in regards to the Skilled Worker and Business classes. The summaries of the Family Class, the Rights and Obligations of a Permanent Resident, and Fees were presented in July’s newsletter.

Skilled workers:

Skilled worker: A foreign national maybe selected as a member of the economic class on the basis of his or her ability to become economically established in Canada.

The new selection grid will focus on people’s ability to become economically established in Canada based on his or her knowledge and skills that he or she will bring to general labor pool in Canada. Selection will no longer be based on the National Occupational Classification (NOC).

Proposed Changes in the grid:

a. Age: Maximum 10 points

The age criteria will be the same as the present selection system. A maximum of 10 points will be awarded to applicants between the age of 21 to 44. 2 points will be lost by years for applicants under the age of 21 or over the age of 44.

b. Education: Maximum 25 points

More points will continue to be awarded to individuals who accumulated higher levels of education. In fact, approximately 30% of the point grid is education-based. Education will play a key role in the selection process.

c. Language: Maximum 20 points

15 % of the point grid is related to language abilities. Point will be increased in fluency in one of Canada’s official language (English or French) as fluency in both languages does not increase significantly chances of applicants to succeed in the Canadian labor market. Points will be awarded according to 4 skills:
– speaking;
– reading;
– writing;
– listening.

Since assessing language abilities is not an easy task, a project for a standardized test
is in the making.

d. Experience: Maximum 25 points

Presently, experience is measured in relations to the intended occupation. The new selection system will focus on the applicant’s years of education and years of experience in a highly skilled occupation. Experience will be examined in a specific time frame. Points will be awarded based on the number of years of recent work experience. Apprenticeship and volunteer work will also be counted.

e. Validated arranged employment: Maximum 10 points

There will be a minimum requirement of one year’s work experience in order for the person to enter that intended occupation that has been validated.

f. Adaptability: Maximum 10 points

Points will be awarded in that section for the following :

– Spouse’s (including common-law partners) education;
– Authorized work in Canada;
– Full-time post-secondary studies in Canada;
– Informal job offer in Canada;
– Family member in Canada.

Please note that if an applicant received 10 points for a validated job offer, no points will be awarded for an informal job offer.

The maximum points will be 100 but the pass mark as not yet been revealed.

The goal is to select the immigrant’s Canada needs based on their flexible skills rather than intended occupations and emphasize experience in any skilled occupation rather than designating particular occupations.

The ability of an immigration officer to exercise discretion when they believe that the total points awarded does not properly reflect an applicant’s potential, will be preserved by the new regulations.

Although the NOC will no longer be in effect, a negative occupation list should be set up in order to protect the Canadian labor market.

Business class:

The new Regulations will establish objective and common standards for the selection of business immigrants. It will do so by using previous business experience and net-worth as the threshold for selection. It will use common elements in the Investor and Entrepreneur definitions to assess business experience (entrepreneur will need to demonstrate experience in ownership or management of a business).

It will maintain selection grid for business immigrants to provide capability to fine tune selection in light of measured performance of economic activities by business immigrants selected under new definitions.

It will also allow for the inclusion of spousal assets when assessing net worth.

3.1 Investors

The new Investor definition drops the current requirement that the net worth be created by the Investor’s own endeavours.

The new regulation will define Investor to mean:

An immigrant who:
a. has a business experience;
b. has a net worth of at least 800 000$ CAD;
c. indicates to the Minister, in writing, and establishes to the satisfaction of a visa officer, that they have made an investment.

3.2 Entrepreneur

The new regulation will define Entrepreneur to mean:

An immigrant who:
a. has a business experience;
b. has a net worth of at least 300 000$ CAD;
c. has indicated to the Minister, in writing and establishes to the satisfaction of a visa officer, that they intend and have the ability to “control” and provide active and ongoing participation in the management of a “qualifying Canadian business” for a minimum of one year where at least one incremental “full time job equivalent” is created for one or more permanent resident or Canadian resident other than the Entrepreneur and his dependant;
d. has entered into an irrevocable “letter of credit” with a “Canadian Financial Institution” to make an investment on the Entrepreneur’s behalf in the event that the entrepreneur does not meet the requirement in “c” above.

The last section (d) refers to a proposal indicating that if the entrepreneur cannot meet the conditions on his visa, the letter of credit will be transferred into the Investor program.

The Entrepreneur would have 3 years (no longer 2 years) to satisfy the terms and conditions associated with his permanent residence and if he cannot fulfill them in that time frame, the letter of credit would be transferred automatically. 2 years after landing, the Entrepreneur would also have the opportunity to invest the money voluntarily in order to satisfy the terms and conditions associated with his permanent resident status.

The definition also mentions the term “qualifying Canadian business”. A “qualifying Canadian business” is a business who would correspond to at least 2 of the following 4 criteria:

– equivalence of 2 full time jobs per year;
– sales of at least 250 000$ CAD per year;
– profits of a at least 25 000$ CAD per year;
– assets of at least 125 000$ at the end of the year.

A similar concept is proposed to assess the business experience of the applicant. A qualifying business will need to comply with 2 of the 4 following requirements:

– Sales of 500 000$ CAD
– Profits of 50 000$ CAD
– Capital of 125 000$ CAD
– 2 full time employee

3.3 Self-employed

The self -employed category will be redefine in order to only include immigrants who can make an artistic or cultural contribution, farmers and world class athletes.

In view of the new regulations, self-employed means an immigrant who intends and has the ability to create an employment opportunity for himself and will make a significant contribution to the cultural or artistic life of Canada, or intends and has the ability to establish or purchase an agricultural business in Canada that will create an employment opportunity for himself.