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Corporate Immigration: Changes to the Intra-Company Transfer Provisions

Date

February 10, 2012

AUTHOR(s)

Naseem Malik


In the past year, there have been a number of significant developments that affect processing of temporary foreign workers under the Intra-company Transfer (ICT) category. These changes effect applications made pursuant to both the North American Free Trade Agreement and the global regulations of the Immigration and Refugee Protection Act. They include a new policy guideline for assessment of the specialized knowledge subcategory and secondly, a new progressive scheme which allows in certain circumstances for a "recapturing" of work permit eligibility time for ICTs of both specialized knowledge workers and senior executives/managers.

Specialized Knowledge Policy Clarification

Under these new guidelines when assessing an application for a work permit as a specialized knowledge worker, there are now a number of factors that will be taken into consideration to determine if the application supports the claim of specialized knowledge. They include an assessment of such factors as, whether a diploma or degree is required for the position sought, and if the work experience with the foreign company/the respective industry supports the claim of specialized knowledge.

The position in Canada must be of a level that is similar to the applicant’s home position or higher, unless the applicant is able to satisfy the visa officer that an exceptional situation exists. In conjunction with the foreign worker’s knowledge, education and experience, the National Occupational Classification will also be used to determine the appropriate wage.

There is now also an examination of the worker’s prospective salary in Canada and whether it is realistic in terms of Canadian wage levels for the occupation concerned. Salaries of specialized knowledge workers in Canada should normally approximate the average wage for the stated occupation in the specified geographical location while working in Canada.

Finally, the category now requires that the processing immigration officer also consider if any previous training supports the claim to specialized knowledge and if the supporting documentation provided by the foreign worker supports the claim of specialized knowledge.

Recaptured Time

Normally, the duration of the work permit is used to calculate the maximum five or seven year time limit that an ICT is allowed to work in Canada, regardless of how much time they physically reside in Canada during the duration of their permit. This policy was particularly problematic for those workers who did not reside in Canada for great periods of time during the validity of their permits, but rather travelled into Canada for short trips for work-related purposes.

Now documented time spent outside Canada can be recaptured to allow the ICT five or seven full years of physical presence in Canada. This now means that if a worker has spent a portion of the validity of their work permit outside Canada they may be able to recapture that time and seek additional time under this category beyond the five or seven years.

For example, if a specialized knowledge worker has had successive work permits valid for the past five years, but has spent in the last year six of those months working outside Canada, they may be able to seek an additional six months of validity without having to seek a new category or a labour market opinion from Service Canada.

Summary

Given the greater scrutiny that applicants applying under the specialized knowledge category will experience going forward, employers will be best advised to take greater time and seek expert advice on whether each worker meets the legal threshold for eligibility in the category, and given the new generous policy of recaptured time, employers and current ICT work permit holders should examine their individual cases.

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