Intra-company transferees must meet stricter criteria

10 Jun 14

CANADA

IMPACT – HIGH

What is the change? Canada has released guidelines that raise the criteria for intra-company transferees (ICTs).

What does the change mean? The guidelines introduce a more rigorous definition of “specialized knowledge” and impose mandatory wage requirements for some ICTs.

  • Implementation timeframe: Immediate.
  • Visas/permits affected: Work permits in the Temporary Foreign Worker Program (TFWP).
  • Who is affected: Intra-company transferees who apply under the specialized knowledge Labour Market Opinion (LMO) exemption category.
  • Impact on processing times: None.
  • Business impact: The changes raise the qualifying criteria as well as the cost for some ICTs.
  • Next steps: Companies should determine if their ICTs meet the new requirements.

Background: Yesterday, Canada released Operational Bulletin 575 for officers who assess work permit applications for ICTs with specialized knowledge.

The assessment guidelines define “specialized knowledge” as requiring both proprietary knowledge and an advanced level of expertise. The bulletin details the documentary evidence officers will consider and the definitions of “proprietary knowledge,” “advanced proprietary knowledge” and “advanced level of expertise” that officers will use in making their assessments. In addition, the bulletin directs officers who are assessing such knowledge or expertise to consider:

  • Abilities that are “unusual and different from those generally found in a particular industry.”
  • Knowledge or expertise that is highly unusual in the company or industry.
  • Proprietary knowledge critical to the company’s Canadian branch, and whose absence would cause business disruption.
  • Proprietary knowledge of a business process that is unusual, not widespread, and not likely to be available in the Canadian labor market.

“Citizenship and Immigration Canada considers specialized knowledge to be knowledge that is unique and uncommon,” the bulletin says. “(I)t will by definition be held by only a small number or small percentage of employees of a given firm. Specialized Knowledge workers must therefore demonstrate that they are key personnel, not simply highly skilled.”

These new guidelines would not technically affect ICT applicants from countries with bilateral agreements with Canada, including NAFTA, Chile, Colombia and Peru where the wording of individual agreements would have priority. However, the new guidelines are likely to have a chilling effect on how officers will now view specialized knowledge applications for ICTs.

Specialists with a high standard of specialized knowledge in their industry must meet a mandatory wage floor, set at the prevailing wage. Officers will determine the Canadian prevailing wage for the specific occupation and regions of work by using Employment Skills Development Canada (ESDC) “Working in Canada” website’s tool.

BAL Analysis: Citizenship and Immigration Canada will immediately apply stricter assessment criteria that will significantly impact all ICT applicants in the specialized knowledge LMO exemption category.

This alert has been provided by the BAL Global Practice group and our network provider located in Canada. For additional information, please contact your BAL attorney.

Copyright © 2016 Berry Appleman & Leiden LLP. All rights reserved. Reprinting or digital redistribution to the public is permitted only with the express written permission of Berry Appleman & Leiden LLP. For inquiries please contact copyright@balglobal.com.