1. THE ENTREPRENEUR CATEGORY:

Quebec defines an “entrepreneur” as follows:

a) An individual who has at least three (3) years of experience in management of a farming, commercial or industrial business that is profitable and legal. (The definition of Management experience differs from that of the investor category).

b) The entrepreneur must create or acquire and manage himself a farming business or a business in a commercial or industrial sector in which he must employ at least 3 Quebec residents in addition to him/herself or his accompanying family members, on a full time permanent basis,

Management experience (Entrepreneur) is defined as the actual assuming, on a full-time basis of responsibilities and duties related to the planning, management and control of material, financial and human resources, provided that such responsibilities and duties are not assumed in the context of an apprenticeship, training or specialization process attested to by a diploma.

2. THE SELF EMPLOYED CATEGORY:

A self-employed worker is an individual who comes to Quebec to create his/her own employment based on the exercise of one of the professions defined in the National Occupational Classification;

Key words: Quebec Business Immigration, Quebec Investor Category, Quebec Entrepreneur Category, Quebec Self-Employed Category.

Canadian Bar Association

2005 CLE Conference

National Citizenship & Immigration Law Section

Banff, Alberta, April 15-16, 2005

QUEBEC BUSINESS IMMIGRATION PROGRAM

Presented by:

Herbert Brownstein (Senior Partner)

Brownstein, Brownstein & Associates

1310 Greene Avenue, Suite 750

Montreal, Quebec, CANADA H3Z 2B2

Tel: 514-939-9559

Fax: 514-939-2289

Website:

Email:

QUEBEC BUSINESS IMMIGRATION PROGRAM

Presented by: Herbert Brownstein (Senior Partner)

Brownstein, Brownstein & Associates

1310 Greene Avenue, Suite 750

Montreal, Quebec, CANADA H3Z 2B2

Tel: 514-939-9559

Fax: 514-939-2289

Website:

Email:

INTRODUCTION

Pursuant to the Canada-Quebec Accord relating to Immigration and Foreign Nationals which entered into force on April 1, 1991, the Quebec Government was delegated the federal power over immigration selection for independent immigrants and refugees destined to settle permanently in it’s provincial territory. The federal power over immigration is to be found under Section 95 of the Canadian Constitution of 1867. Canada continues to maintain it’s jurisdiction over determining admissibility on medical, security and criminal grounds.

Canada is now required to accept all independent immigrants (workers, investors, entrepreneurs and self-employed) once selected by Quebec unless found to be inadmissible due to medical, criminal or security reasons. Furthermore, Canada is not permitted to admit into Quebec, an immigrant who does not satisfy Quebec selection requirements. Quebec acceptance is also required for the selection of students and workers destined to it’s province. Canada retains sole jurisdiction over family class, refugees and visitors.

The purpose of this accord was to provide to Quebec a means within which to preserve its demographic weight within Canada and to allow the Province an integration of immigrants respectful of the distinct character of Quebec society.

Section 3.1 of An Act Respecting Immigration to Quebec Chapter I-02 updated to February 1, 2005 provides that a foreign national wishing to settle permanently in Quebec must, as a general rule, file an application for a selection certificate with the Quebec Immigration department. There are currently 9 Quebec full service immigration offices worldwide, namely New York, Brussels, Damascus, Hong Kong, Mexico, Paris, Vienna, Buenos Aires and Maghreb (located in Montreal)..

Investors and Entrepreneurs may have their selection interviews conducted in Montreal.

Regulation 21 of the Regulation respecting the Selection of Foreign Nationals as amended to March 2, 2005, provides for the conditions of selection of independent immigrants to Quebec. Independents include workers, investors, entrepreneurs, self-employed and assisted relatives.

Business Immigrants are comprised of three (3) categories:

1. THE INVESTOR:

Under Regulation 21 (d) and 34.1, an investor is defined as one who has:

a) 3 years of management experience:

- in a farming, commercial or industrial business that is profitable and legal;

- for a government or one of it’s department or agencies;

- for an international agency

b) net assets of at least $800,000.00 that he has accumulated through his legal economic activities;

c) indicated his intention to settle and invest in Quebec an amount of $400,000.00 CAD. An investment agreement must be signed with a broker or trust company that entered into an agreement with Investissement Quebec. The term of the investment is five years. The purpose of this investment is to finance the growth of Quebec based companies. The investment is guaranteed by the Quebec Government and is returned to the investor without interest in 5 years.

Under Regulation 1 (e-2) management experience is defined as the actual assuming on a full time basis in the ten years preceding the application for a selection certificate, of responsibilities and duties related to the planning, management and control of financial resources and of human or material resources, provided that such responsibilities and duties are not assumed in the context of an apprenticeship, training or specialization process attested to by a diploma.

SUMMARY

Country Profile: Quebec, Canada

INVESTOR PROGRAM:

Quebec defines its Investor as follows:

MINIMUM NET WORTH:

CDN $800,000

ACTIVE BUSINESS INVOLVEMENT AFTER IMMIGRATION:

Not required.

SOURCE OF FUNDS

Accumulation of a minimum personal net worth of CDN $800,000 from the investor’s own economic endeavours (no gifts or inheritance)

EVIDENCE OF PRIOR BUSINESS MANAGEMENT

Three (3) years of management experience in a farming, commercial or industrial business that is profitable and legal. Management experience is defined as the actual assuming, on a full time basis in the ten years preceding the application for a selection certificate, of responsibilities and duties related to the planning, management and control of financial resources and of human or material resources. No minimum size of business or number of employees are required.

MINIMUM INVESTMENT

CDN $400,000. The investment is made through a Quebec Government approved broker with the approval and guarantee of the Government of Quebec. The investment must be made with Investissement Quebec prior to entry to Canada. Loan arrangements by the brokers with the involvement of a financial institution are permitted.

CONDITIONS:

The immigrant must make the necessary investment as outlined above. The immigrant is not obliged to undertake any business activities after arrival, and may reside anywhere within the Province of Quebec.

2. THE ENTREPRENEUR

Under Regulation 21 (b) an “entrepreneur” is defined as one who has:

a) 3 years of management experience;

- in a farming, commercial or industrial business that is profitable and legal;

a) and comes to Quebec to create or acquire and to manage himself:

- a farming business; or

- an industrial or commercial business that will immediately employ on a permanent and full time basis at least 3 Quebec residents other than the foreign national and his accompanying dependents; or

- to participate as a partner in the management and daily operations of the business;

The applicant is also required to possess a minimum net worth of CAD $300,000.00 obtained legally. This can be monies received as a gift or inheritance and can include one’s accompanying spouse’s assets.

The terms and conditions imposed on the entrepreneur for opening his business in Quebec are now monitored by the Canadian Government by agreement with the Quebec province and in virtue of Section 88 and Section 98 (1) to (5) of the Immigration and Refugee Protection Regulations.

For a minimum period of one year during the course of three (3) years following the moment when he becomes a permanent resident, the entrepreneur is subject to the following conditions:

a) control a percentage of equity of a Qualifying Canadian Business equal to or greater than 33 1/3 %;

b) create at least one full time job for a Canadian citizen or permanent resident other than himself and a family member;

c) assume the active management of the business;

d) furnish proof of conformance to said conditions within 3 years following the date he becomes a permanent resident;

e) the entrepreneur must furnish to the Federal immigration officer within 6 months after the date he becomes a permanent resident, the address of his residence and telephone number;

f) between 18 to 24 months after the date he becomes a permanent resident, proof of his efforts to comply with the imposed conditions;

A Qualifying Canadian Business is defined under the new Federal Immigration Regulations as a business operated in Canada by an entrepreneur for which, in any year within three years after the date the entrepreneur becomes a permanent resident, any two of the following conditions are satisfied:

1. The percentage of equity multiplied by the number of full time job equivalent is equal to or greater than 2 full time job equivalent jobs per year;

2. The percentage of equity multiplied by the total annual sales is equal to or greater than $250,000;

3. The percentage of equity multiplied by the net income in the year is equal to or greater than $25,000;

4. The percentage of equity multiplied by the net assets at the end of the year is equal to or greater than $125,000.

Summary

ENTREPRENEUR PROGRAM

Quebec defines it’s entrepreneur program as follows:

MINIMUM NET WORTH:

CDN $300,000

ACTIVE BUSINESS INVOLVEMENT AFTER IMMIGRATION:

The entrepreneur must create or acquire a business to operate and manage him/herself, in the farming, commercial or industrial sector, and must employ at least 3 Quebec residents in the latter 2 sectors, in addition to him/herself or his accompanying family members, on a full time permanent basis,

SOURCE OF FUNDS

Accumulation of a minimum personal net worth of CDN $300,000. (Inheritance included) Includes accompanying spouse’s assets.

EVIDENCE OF PRIOR BUSINESS MANAGEMENT

Three (3) years of management experience in a farming, commercial or industrial business that is profitable and legal. Management experience is defined as the actual assuming, on a full-time basis, of the responsibilities and duties related to the planning, management and control of material, financial and human resources.

MINIMUM INVESTMENT

No specific amount is mentioned in the regulations. However an investment must be made sufficient to create or acquire a business in Quebec. As a rule of thumb, CAD $100,000.00 will be required.

CONDITIONS:

Conditions are imposed on the Entrepreneur’s permanent immigrant visa. He will be required to open and own a Canadian qualifying business in Quebec for at least one year within the three years of his arrival in Canada and actively manage it.

3. THE SELF-EMPLOYED

Under Regulation 21 (c) an individual is designated as a “Self-Employed person” if he comes to Quebec to create employment for himself by practising a profession defined in the National Occupational Classification.

Summary

SELF EMPLOYED PROGRAM

MINIMUM NET WORTH:

CDN $100,000

ACTIVE BUSINESS INVOLVEMENT AFTER IMMIGRATION:

The self-employed must create employment for himself by practising a profession as defined in the National Occupational Classification.

SOURCE OF FUNDS

Accumulation of a minimum personal net worth of CDN $100,000. (Inheritance included). Includes accompanying spouse’s assets.

EVIDENCE OF PRIOR WORK EXPERIENCE:

Minimum 2 years of self employed work experience in the profession he intends to exercise in Quebec. Excludes professions which require licensing, i.e. medical doctors.

MINIMUM INVESTMENT

None is specified.

CONDITIONS:

No monitoring conditions.

Processing Information

The following is a general description of the documentation required and processing stages in a Quebec Business application. The documentation is quite extensive and cannot be described in its entirety within the limits of this paper.

The application kits are very detailed and request support documents to prove the contents of the applicants Balance sheet of Assets and Liabilities. This includes, bank statements, property deeds, financial statements with owners equity outlined, and capital verification reports.

In addition to the application form with support documentation, entrepreneurs must submit a detailed business plan as well as documents in support of their market exploratory trip to Quebec. This detailed business plan, must include all the pertinent elements to convince the Quebec visa officer that the applicant will succeed in their business project. During the visit to Quebec, the entrepreneur applicant, must visit banks, accountants, lawyers, potential suppliers, potential rental facilities, government associations and business associations and other relevant contacts as well as provide proof to the officer of said visits.

Entrepreneurs must also provide proof of management experience and lawful accumulation of wealth.

In the initial application, the investor must prove his management experience and the accumulation of all his/her money. This can be done by way of reference letters from early employment, income tax statements, financial statements prepared by certified public accountants from the country of origin showing annual profits and bank statements providing a lengthy history of deposits.

The self-employed applicant must submit much of the documentation listed above together with proof of relevant work experience. This naturally, is in addition to, the normal documentation, such as photos, passports, birth certificates, school documents, as required in any immigration application.

The processing times are always changing depending on the volume of application, and the number of immigration officers sent to work a missions around the world and at the business head office in Montreal. However, one thing is certain. The processing times for Quebec are much faster than for applications through the Federal (Canadian System). At present processing times in these categories depending on the Quebec Immigration office range from three to seventeen months until interview. An interview can be arranged in Montreal within three to four months from submission of application. After the applicant receives Certificates of Selection for his family, the Federal Government must complete criminal security clearance and medical checks which usually take another 3 to 12 months.

Children, 22 years and younger, if unmarried are included as dependents of the principal applicant. Dependent children 22 years of age or older may be included if they are full-time students and financially dependent upon their parents. Full-time students must prove that they are, and have been, studying in an accredited post-secondary educational institution without interruption since their 22^nd birthday in a defined academic, professional or vocational program of study.

Permanent visas are valid for one year from the date of the results of the medical examination. The visa must be activated by entering Canada before the expiry date indicated.

Post Arrival Obligations

Under the investor category there are no conditions once the $400,000 investment is made. After 5 years the investment is returned to the investor. He does not have to open up any other business and is not legally obliged to remain within the jurisdiction of Quebec.

Under the Entrepreneur Category the immigrant must open up a business within 2 years of arrival, manage and operate it for one year subject to the terms and conditions described in IRPA, and prove this effort to the immigration authorities in order to have the condition on his visa removed.

Naturally he must live in Quebec in order to manage the business himself.

Historically, many Quebec Investors have left Quebec and settled in other provinces after arrival. Entrepreneurs however cannot do this since they have to actively manage their business within Quebec in order to have their conditions removed.

Analysis

Individuals who are not within the preferred age group, do not speak English or French, but have sufficient assets accumulated legally by their own economic efforts, choose the Investor Visa, since they would not be eligible under any other non-business immigration visa, nor do they wish to actively operate a business in Canada. Many of these individuals wish to improve their family situation and wish for their children to receive the education and social democratic benefits of Canada.

Individuals who do not have the necessary $800,000 Canadian accumulated in assets, and are not within the preferred age group and may have poor language skills, chose one of the other business categories. These individuals do have the necessary business experience to succeed under the entrepreneur or self-employed category, but do not meet the points under the independent skilled worker category.

The benefits of applying for a business visa, primarily centre around the fact that the applicant would not be able to obtain permanent residence to Canada under another program and has a strong desire to immigrate to one of the “best places in the world to live” as stated by the United Nations on many occasions.

The liability of any of these programs is the financial commitment the immigrant must make in choosing one of these categories.

RESPECTFULLY SUBMITTED BY HERBERT BROWNSTEIN, BANFF, CANADIAN BAR ASSOCIATION NATIONAL CITIZENSHIP AND IMMIGRATION LAW SECTION AND THE CONTINUING LEGAL EDUCATION COMMITTEE, APRIL 2005.

Biography

Herbert Brownstein, senior partner of the law firm Brownstein, Brownstein & Associates was admitted to the Barreau du Quebec in 1984. He received his Bachelor of Arts, Bachelor of Civil Law and Bachelor of Common Law degrees from McGill University. His present law firm was established in 1991 and specializes in International Business Law, Canadian and Quebec Immigration laws and Canadian Citizenship matters.

A significant portion of Mr. Brownstein’s practice is devoted to advice on Canadian and Quebec immigration laws and he has represented many individuals and corporate clients from different countries under the various immigration categories, namely skilled worker, business, family class and work permits. His firm also has representative offices in many countries worldwide. In 1996 he was elected to the Canadian Bar Association (Quebec), Citizenship and Immigration Executive. He has held the following positions:

Overseas Offices Coordinator (1997-1999)

Communications Coordinator (2000-2002)

Business Immigration Coordinator (2002-2004)

Vice Chair (2004-present)

In 2004, he was elected to the executive of the National Citizenship and Immigration Law Section as a Member at Large. He has regularly appeared as a guest speaker at international conferences. In May of 1997 he was a speaker at the APEC Exhibition and Seminars in Montreal honoring Canada’s year of Asia Pacific. In November 1997 he was invited and participated on MISSION QUEBEC to China led by the Premier of Quebec, Mr. Lucien Bouchard. In April 1999 he organized and led a workshop at the Canadian Bar Association National Immigration and Citizenship Law Section annual conference in Montreal. In June 1999 he was a speaker at the International Bar Association Conference of Lawyers from around the world in Boston, U.S.A. In February 2001 he accompanied the Prime Minister of Canada, the Right Honorable Jean Chretien on the Team Canada Trade Mission to China.

Mr. Brownstein appeared as a speaker on Investor Immigration at the International Bar Association Conference held in Durban, South Africa in October 2002. He also organized and led a workshop on how to prepare a Quebec Investor file at the CBA-Quebec CLE activity held in Montreal in October, 2002. He also appeared as a guest speaker at Ontario Bar Association Immigration Law luncheon held in Toronto on Quebec Independent Immigration in February 2003.

Mr. Brownstein is a member of the Quebec Bar, Canadian Bar Association, International Bar Association and Canada China Business Council, the Quebec Immigration Lawyers Association and the Lord Reading Law Society.