Fixing the catch-22 of Canada’s business immigration programs

Via email: Glen.Bornais@cic.gc.ca

Glen Bornais
Assistant Director, Permanent Economic Immigration
Immigration, Refugees and Citizenship Canada
365 Laurier Avenue West
Ottawa, ON K1A 1L1

Dear Mr. Bornais

Re: Consultation on Federal Business Programs (Current State and Future Direction)

The Immigration Law Section of the Canadian Bar Association ("CBA Section") is pleased to provide comments to Immigration, Refugees and Citizenship Canada ("IRCC") in response to its consultation on the current state and future direction of Canada’s federal business immigration programs. The Canadian Bar Association is a national association representing more than 40,000 lawyers, notaries, law teachers, and law students across Canada. The CBA has a longstanding mandate to promote the rule of law, access to justice, effective law reform, and improvements to the administration of justice.

The Immigration Law Section comprises over 1,000 lawyers practicing in all areas of immigration, refugee, and citizenship law, advising individuals, families, and employers in Canada and abroad.

Executive Summary

• IRCC’s business immigration programs currently ask applicants to prove operational progress in Canada that the programs themselves prevent them from making before a work permit is issued. This structural catch-22 is the single greatest source of friction in genuineness assessments, and it should be the starting point for reform.
• The CBA Section recommends that IRCC publish clear, specific evidentiary criteria for both permanent residence and work permit applications, communicated to applicants at the outset rather than inferred after the fact through litigation.
• Work permit adjudication for SUVs and related categories should be recalibrated so that officers assess applications against standards that a genuine early-stage start-up can actually meet, rather than those of an established business.
• The CBA Section recommends that IRCC re-open the SUV Open Work Permit for a time- and circumstance-limited window or, in the alternative, provide clear instructions to visa posts to issue C11 and C10 work permits to entrepreneurs in most cases.
• For SUV team compositions, the CBA Section recommends special measures that allow founders to switch between essential and non-essential designations or to exit and transfer their shares to a co-founder, without penalizing the remaining group.
• The CBA Section also recommends a one-time increase in the number of SUV permanent residence spots to clear the existing backlog.
• For the New Entrepreneur Pilot, the CBA Section supports an EOI-first model, clearly defined mandates for Designated Organizations including specified fee limits, assessment criteria calibrated to start-up realities, and firm processing-time commitments that IRCC honours even as policy evolves.
• Program integrity and applicant fairness are not competing goals. Clear criteria, transparent fees, and predictable timelines will reduce both misuse and litigation, while giving genuine entrepreneurs a workable path to build in Canada.
• The CBA Section urges IRCC to treat the legitimate expectations of applicants who relied on earlier guidance as binding, and to engage the legal profession directly in shaping the redesigned program.

Introduction

The CBA Section writes further to its earlier submissions and recommendations regarding federal business immigration programs. It commends IRCC for undertaking a review of Canada's start-up and entrepreneur immigration programs. The CBA Section welcomes the opportunity to contribute the experience of counsel who routinely advise clients through this process. A program designed to select genuine entrepreneurs depends on recognizing one, and the surest evidence of genuine intent is the progress an applicant has actually made toward building the business. That measure can, however, be applied fairly only where applicants know in advance what progress IRCC expects to see.

At present, they often do not. Many applicants are assessed against criteria that have never been communicated to them. The difficulty runs deeper than notice alone: the steps that would demonstrate an established business operating in Canada, hiring here, and opening a Canadian bank account generally cannot be taken without a work permit, and a work permit cannot be obtained without first showing the business is established. Founders are asked to prove what the program itself prevents them from proving. A fair system would tell applicants what to expect, give them a genuine opportunity to obtain the status needed to begin building from outside Canada, and reserve its fastest processing for those who demonstrate they have met the standard, not for those who arrived earliest in the queue.

The submissions below address IRCC's specific questions in this light. Taken together, they point toward a program in which clear and public criteria define genuine intent, applicants are given the practical means to satisfy them, and the system rewards demonstrated progress rather than processing order.

Area 1: Start-Up Visa Guidance

Question 1: Given that Start-Up Visa ("SUV") applications are often processed years after submission, what types of evidence should IRCC consider strong indicators of genuine intent and start-up progress when assessing permanent residence applications? What about work permit applications? Where is the most friction in IRCC's assessment of progress and genuineness?

Applicants need a concrete framework against which to measure their progress. At present, there is minimal evidentiary framework to which applicants or counsel can refer; most current criteria have evolved through jurisprudence rather than published guidance. The CBA Section recommends that IRCC set out specific, published criteria and metrics. Given the vagueness that has characterized the program from the outset, these criteria must be established and communicated in advance.

Indicators of genuine intent and start-up progress

The following may serve as strong indicators of genuine intent and start-up progress:

• Visits to Canada, or previous applications for visas or work permits;
• Proof of investment made into the business, for example a set amount per year;
• Evidence that the product has been developed, or evidence of progress in its development;
• Proof of hiring Canadians;
• Patents, where a patent is fully registered for the technology being developed;
• Canadian partners or clients;
• Industry endorsements;
• Proof of income generated, for example a set amount per year; and
• For founders whose start-up cannot be initiated without the security of long-term residence in Canada, such as ventures centred on large multi-year development projects, ventures that require applications for funding, or applicants who are nationals of countries that cannot transact with Canadian businesses from abroad due to sanctions: proof of efforts to investigate and prepare for the above from overseas.

Applicants should have the option to demonstrate any two of these metrics per year.

Work permit applications

Applicants cannot truly establish and operate a business or commence operations in Canada unless they hold a work permit that allows them to come to Canada and, among other things, open a Canadian bank account. The assessment of work permit applications should reflect this reality. IRCC cannot reasonably expect evidence of in-Canada business activity that itself depends on the very work permit the applicant is seeking.

The sharp rise in work permit refusals since the fall of 2024 and the resulting wave of Federal Court challenges indicate that officers are being directed to scrutinize applications to a standard that most genuine applicants cannot meet. The CBA Section recommends that officers be trained and instructed to assess these applications on terms that mirror the realities of SUV applicants and give them a genuine opportunity to succeed.

The CBA Section strongly reiterates its recommendation that IRCC re-open the SUV Open Work Permit ("SUV OWP") for a time- and circumstance-limited window to allow applicants to come to Canada and build their start-ups. Applicants in the 2025 cohort, in particular, have been adversely affected by the abrupt suspension of the SUV OWP in December 2025, as have 2024 applicants, who faced a record number of refusals. Re-opening the SUV OWP, even within a limited 6-month timeline, would ensure that all applicants have an equal opportunity to come to Canada and build their businesses.

In the alternative, if IRCC is not prepared to exercise this option, the CBA Section recommends that IRCC provide proper instructions to visa posts to allow entrepreneurs who apply for work permits under the C11 (Entrepreneur category) and C10 (Significant Benefit category) to be issued work permits in most reasonable cases, particularly for those who have already established businesses in Canada.

Sources of friction

The most significant friction arises from the absence of a clear and consistent evidentiary framework and from the application of assessment criteria that were not clearly set out at the time of application. In fact, at the introduction of the SUV program, the actual criteria were minimal. The practical barrier described above, under which a founder cannot demonstrate evidence of progress without first obtaining authorization to enter Canada and operate, compounds this difficulty.

Internal policy changes to the SUV program over the last two years have departed from the practice in place when applicants filed before 2024, and the legal basis for decision-making has itself evolved through developing Federal Court jurisprudence. Both breach the legitimate expectations of applicants, representatives, Designated Organizations, and other stakeholders who relied on IRCC's earlier guidance and instructions in preparing and submitting their applications; it is not fair to assess those applicants against standards that only emerged afterward. The only available remedy, judicial review, has proven untenable and impractical for stakeholders, including IRCC, creating a significant access-to-justice problem. The criteria for assessment should therefore be clearly set out now, with applicants who have pending applications given a clear opportunity and timeline — for example, up to one year — to respond as set out above.

In addition, the Federal Court has recently confirmed that Ministerial Instructions which repeal a prior processing framework without providing a replacement cannot serve as a reasonable justification for delay, since doing so leaves applicants in a policy vacuum with no transparent basis on which to assess if, or when, their application will be processed.¹. The same reasoning applies to the changes in program expectations and eligibility criteria described throughout this submission: eliminating a processing framework without a replacement does not meet the standard required by law, however broad the Minister's authority to set processing priorities may otherwise be.

These suggestions are consistent with the CBA Section’s 100 recommendations to modernize Canada’s immigration law. Namely, that IRCC introduce systemic measures to address processing backlogs and delays, including transparent intake mechanisms, predictable timelines, and real-time case status updates², and its earlier recommendation to establish clear service standards, including expedited pathways for urgent cases.³

Question 2: Based on your experience, what behaviours might appear to an officer to be red flags but are in fact normal for genuine start-up founders?

The lack of physical presence in Canada, and in some cases the lack of permanent residence or citizenship status, severely impacts SUV founders' ability to take on formal work in Canada.

For example, applicants cannot open a Canadian bank account without being physically present in Canada and holding a work permit. In turn, not having a bank account can prevent the business from moving forward in Canada, including hiring staff and making investments. The resulting lack of formal activity in their Canadian corporation should not be read as a lack of genuine intent, because the underlying obstacle is structural rather than a reflection of the applicant’s commitment.

Similarly, the fact that an applicant did not apply for a work permit before December 2025 should not be treated as a red flag. Given the high refusal rates for SUV applicants outside Canada and the absence of any requirement to be present in Canada, many genuine founders reasonably chose not to apply for a work permit to avoid a refusal on their record. That decision reflects a rational response to the program's basic conditions, not an absence of serious intent to establish the start-up.

Furthermore, complex, user-friendly technology products take years to develop, and officers unfamiliar with the industry are applying standards from established businesses that are not practicable to meet.

For example, officers often assess applications based on criteria such as the presence of an active website, a physical office, or evidence of revenue. These conditions are not reflective of most start-up companies, whose founders may still be in the product development stage, working from home, not yet in the marketing stage, and not yet receiving revenue.

Question 3: If IRCC were to guide applicants on demonstrating that they are truly and actively pursuing their business, what are the top three to five elements you would recommend including to reduce confusion and uneven expectations?

The CBA Section recommends that any such guidance include the following elements:

• A fair opportunity to apply for one or more work permits;
• Proof of visits or prior applications for work permits to Canada;
• The establishment of corporate and practical infrastructure;
• Following the issuance of a work permit, clear metrics addressing expectations for investment, income, and job creation; and
• A clear statement from IRCC of what it expects applicants to demonstrate, together with a reasonable period in which to respond, commensurate with IRCC’s own delay in processing applications.

Essential vs. Non-Essential Team Members: Special Measures for Departing Founders

In the wake of prolonged processing timelines, many founders are looking to exit their venture but do not want to negatively impact their co-founders in doing so. At present, if an essential team member wishes to withdraw from the venture, the remaining group members face significant penalties, including risk to their own applications, even where the business itself remains viable. This rigid approach does not reflect the reality that founders’ circumstances change over the years it takes to process an application, and it discourages good-faith withdrawals that would otherwise allow IRCC to focus its resources on applicants who intend to proceed.

The CBA Section recommends that IRCC introduce special measures that would allow:

• A limited, time-bound window during which group members may switch their designation between essential and non-essential, without penalty to the group;
• An essential team member to exit the business and transfer their shares to another existing co-founder, without penalizing the remaining group members, provided the group bears the onus of demonstrating how it will cover the resulting gap, for example by making a Canadian hire to replace the departing member’s role; and
• Consideration of the broader confluence of circumstances that necessitated the exit, rather than treating the departure itself as disqualifying.

Many founders who wish to exit a venture hesitate to do so because withdrawal could jeopardize their co-founders’ applications. Special measures of this kind would give these founders a clear and structured path to exit without penalizing their group, while also allowing IRCC to clear a portion of its existing backlog and concentrate its processing resources on applicants who intend to move forward with their businesses — saving time and resources for the department and applicants alike.

The CBA Section further recommends a one-time increase in the number of SUV permanent residence spots, from the current allocation of approximately 500 per year to a more appropriate level, such as 30,000 spots over three years. Reducing the existing backlog at only 500 spots per year is not a tenable timeline, and a materially higher allocation is warranted to clear it within a reasonable period (see Recommendation 60, Annex A).

Area 2: New Entrepreneur Pilot

Question 4(i): Adopting an expression-of-interest-first model for the validated founders stream.

The CBA Section supports an expression-of-interest ("EOI") model. An EOI system with clear scoring and defined intake numbers would allow applicants to understand where they stand and their likelihood of proceeding. It would also make clear that no application is expected until the applicant actually receives an invitation to apply ("ITA"). This model also supports a more authentic initial assessment process that aligns with the program's intended goals, mitigating financial barriers to entry and the loss of genuine start-up potential in Canada. In contrast, the existing model hinges on applicants' ability to afford the Designated Organization and associated fees. An expression-of-interest model can score founders and their businesses against both a founder-profile component and a business-concept component, and requires applicants to meet a minimum threshold in each. A dual-minimum design of this kind ensures that a strong founder profile cannot compensate for a weak business concept, or vice versa, and channels invitations to applicants who are both personally qualified and who propose a genuinely viable business. This builds on the CBA Section's earlier recommendation that IRCC develop an EOI system for temporary entry modelled on the framework already used for Express Entry (see Recommendation 72, Annex A).

Within this framework, certain criteria should be scored on a sliding scale rather than a binary basis. For example, additional points could be awarded for a longer period of business ownership or relevant experience, a higher language test score, or a business concept more strongly aligned with Canada's economic priorities.

Founder profile factors

• The founder has a profile that includes a relevant skill set and experience.
• The founder demonstrates a strong degree of engagement in the project.
• The founder has a prior track record of entrepreneurship or business ownership.
• The founder has evidence of third-party validation, such as acceptance by an accelerator or investor interest.
• The founder is proficient in English or French.
• The founder has invested, or is prepared to invest, personal capital into the business commensurate with its needs.

Business concept factors

• The proposed business aligns with Canada’s economic priorities.
• The proposed start-up is viable and feasible, supported by credible market research and financial projections.
• The business plan demonstrates the potential to create jobs for Canadian citizens or permanent residents.

This would offer transparency and uniformity to the eligibility process that doesn’t currently exist with the DO-first approach.

Question 4(ii): Clearly defining the role of Designated Organizations and requiring fee transparency.

The number of Designated Organizations should be severely limited and tied to public institutions with a track record of success. Oversight should rest with IRCC rather than a separate entity.

Designated organizations should not be permitted to charge fees for services; if fees are permitted, they should be prescribed by IRCC rather than left to market forces, and collected and distributed directly by IRCC. In the tech ecosystem, genuine incubators identify the most promising start-ups, provide seed funding, and supply resources. The program should not enable organizations of limited quality to profit from providing little more than a desk and nominal mentorship to applicants who are not yet in Canada. Notably, several of the most successful incubators, such as Creative Destruction Lab, Communitech, and NEXT Canada, left the program or made little use of it, despite their extensive experience in this area and their track record of supporting highly successful start-ups.

There should also be far greater screening of Designated Organizations and stronger legislative requirements governing them, including requirements tied to employment standards legislation applicable to both employers and recruiters. Meaningful sanctions for breaches are required.

Question 4(iii): Using assessment criteria that reflect start-up realities.

Assessment criteria should reflect the realities of early-stage start-ups. Appropriate criteria include invested funds, intellectual property generated, social media awareness, beta testing, and user growth, rather than revenue growth.

The program should also be favourable towards those who have already started and established businesses in Canada. One of the best predictors of future success is past performance. This is consistent with the CBA Section's earlier recommendations for a modernized suite of federal business immigration pathways, including a dedicated investor pathway, a Federal Entrepreneur Visa, and reform of the Self-Employed Program (see Recommendations 77-80, Annex A).

Question 4(iv): Building predictable processing standards into the program from launch.

As discussed above, internal policy changes to the SUV program have breached the legitimate expectations of applicants, representatives, Designated Organizations, and other stakeholders who relied on IRCC’s earlier guidance, and judicial review has proven an untenable remedy for this problem.

For stakeholders to trust that a new business immigration program will deliver on its promises without shifting the goalposts, the government may need to make unprecedented commitments to honour the legitimate expectations arising from the program design in place at launch. Without such commitments, representatives will lack the confidence to recommend the program to clients, and foreign nationals will be reluctant to invest in the application process. The CBA Section encourages IRCC to engage the legal profession directly in shaping the program.

The CBA Section recommends that IRCC:

• Clearly delineate the standards to be met and the evidentiary requirements for the program at the outset;
• Set a processing time commitment, even if expressed as a range, for example six to eighteen months; and
• Commit to processing applications according to the standard and processing time in place at the time of application, even if those standards or processing times change at later stages.

Question 4(v): Preventing program misuse by Designated Organizations and applicants.

Program integrity is of the utmost importance, and the CBA Section agrees it must be protected against misuse by Designated Organizations and applicants. Together with stricter selection criteria and parameters for Designated Organizations, the CBA Section recommends that IRCC legislate monetary penalties and criminal sanctions for misuse, for example under section 120 of the Immigration and Refugee Protection Act.⁴. Further, the CBA Section encourages IRCC not to impose penalties on legitimate applicants if their Designated Organizations are penalized – such as processing suspensions or cancellations – when evidence does not show that the applicants were privy to or involved in program misuse.

Other Remarks

Beyond the matters raised in response to the specific questions above, the CBA Section recommends that the term "genuine" be defined by reference to specific progress and the active management of the business. A definition framed in these concrete terms would give applicants and officers a shared and predictable standard, rather than a subjective and shifting one to work with.

As discussed above in relation to recent Federal Court jurisprudence on processing delays, the CBA Section recommends that IRCC apply the same discipline across all of the business immigration programs discussed in this submission, including as the New Entrepreneur Pilot develops: any future withdrawal of a processing framework should be paired with clear replacement guidance issued at the same time, rather than leaving applicants and representatives without any means of assessing where an application stands.

Conclusion

The CBA Immigration Law Section appreciates the opportunity to contribute to this consultation. We support the development of federal business immigration programs that are clear, predictable, and procedurally fair, and we urge IRCC to ensure that applicants are assessed against known criteria and given a genuine opportunity to demonstrate the progress these programs are designed to encourage. We remain available for further consultation if required.

Yours truly,

(original letter signed by Noel Corriveau for Jatin Shory)

Jatin Shory
Chair, Immigration Law Section

Annex A – Relevant earlier recommendations of the CBA Section

The following are reproduced from the CBA Section’s earlier recommendations, “Submission on Law, Technology, and Accountability: Reimagining Canadian Immigration for the 21st Century,” Section VIII (Building a Fair and Future-Ready Immigration System). They are included here because they bear directly on the backlog, processing, and business immigration issues raised in this submission.

End Notes

¹ Yu Dai v Canada (Citizenship and Immigration), 2026 FC 931 at paras 26-27, 32-33.

² CBA Immigration Law Section, Law, Technology, and Accountability: Reimagining Canadian Immigration for the 21st Century (May 2025), Recommendation 60: systemic measures to address processing backlogs and delays, including transparent intake mechanisms, predictable timelines, and real-time case status updates: available online.

³ Ibid, Recommendation 61: clear service standards for PRTD processing, expedited pathways for urgent or humanitarian cases, and improved communication through timely updates, accessible status checks, and plain-language decision letters.

⁴ Immigration and Refugee Protection Act, SC 2001, c 27, s 120.