By Catherine Sas, K.C.
Special to The Post

When Canada’s Start-Up Visa (SUV) was first introduced in 2013, the uptake from applicants was very slow with few applications in the first several years.  Things started picking up in 2018 and 2019 with the program building up momentum, largely due to immigration lawyers and consultants becoming more familiar with the program and recommending it to aspiring business immigrants. One of the most attractive features of the program was that SUV applicants would be given permanent residence (PR) on a proposed innovative business concept and that applications would be approved quickly - within 12 months or less. Then the global pandemic hit and immigration processing ground to a halt. Yet the momentum of ongoing SUV applicants continued unabated. By October 2021, “LexBase” editor Richard Kurland reported a backlog of approximately 6700 applicants and opined that the processing of applications would take several years. His prediction has come true! The combination of an increased number of applications and lengthier processing times of several years has changed the way that SUV applications are assessed by visa officers and current and prospective applicants should be aware that the SUV playing field has changed!

A key aspect of the SUV program is that a prospective applicant must have the support of a Designated Organization (DO) which is a Canadian entity approved by Immigration Refugees and Citizenship Canada (IRCC) to both vet and support the applicant’s(s’) business proposal. There are three types of IRCC-approved DOs - a Venture Capital company, an Angel Investor company and a Business Incubator. (For a full list of IRCC-approved DOs please see here: https://www.canada.ca/en/immigration-refugees-citizenship/services/immigrate-canada/start-visa/designated-organizations.html).

The DO essentially confirms the viability of the business proposal and takes that responsibility off of IRCC’s shoulders. Each of the DO’s must provide a Letter of Support (LOS) and a Commitment Certificate (CC) and a Venture Capital company must invest a minimum of $200,000 in the business venture and an Angel Investor company must invest a minimum of $75,000 in the business venture. Business Incubators, must accept the business proposal into their program and nurture the applicant(s) through getting their innovative concept off the ground. IRCC has established a “peer review” process whereby a panel of DO’s can review the actions of other DOs in supporting the business establishment of the applicant(s). A peer review is to be avoided and both DO’s and applicants need to take comprehensive steps to demonstrate their mutual efforts in advancing the establishment of the proposed business venture in Canada.

When IRCC processing of SUV applications was occurring at a fast pace (6-12 months) there was often little scrutiny of the actual efforts of the applicants because the program was designed to attract innovative business persons who would establish their businesses in Canada AFTER becoming permanent residents. However, as the wait times for SUV application processing have ballooned to 3-4 years or more, visa officers are now asking harder questions of prospective applicants. Procedural Fairness Letters (PFLs) are now routinely being sent to applicants asking such pertinent questions:

• Please indicate what you have done to establish your business in Canada.

• Please indicate what the contributions have been from the DO up to present.

• Please indicate if you have a concrete plan to make this business prosperous and

• if that plan has proven successful before.

• Please provide further clarity on the app development roadmap, the percentage

• that has been completed, and the timeline and budget for completion.

• What have been the advancements of the business since incorporation?

• Why did you choose Canada and did you consider any other countries?

• Please demonstrate how an essential part of the business operations will be conducted in Canada.

These are actual questions asked by visa officers regarding an SUV applicant. This demonstrates that in the assessment of SUV applications, officers are no longer willing to grant PR and see what happens later. Aspiring business immigrants in the SUV stream are going to have to put their money where their mouth is and “actually do what you say what you are going to do”!

In addition, in recent years the Federal Court has reviewed several SUV application refusals and confirmed that it is legitimate for visa officers to ask these questions and require applicants to provide evidence that they are actually putting their business plans into action while they are waiting for their PR status. Having solid evidence of what efforts have been taken to date by all applicants and the DO is crucial to the successful outcome of an SUV application.

Catherine Sas, K.C. has over 30 years of legal experience. She provides a full range of immigration services and is a leading immigration practitioner (Lexpert, Who’s Who Legal, Best Lawyers in Canada). Go to canadian-visa-lawyer.com or email [email protected].