Intra-Company Transfers – Specialized Knowledge

On June 9, 2014, Citizenship and Immigration Canada (“CIC”) published Operational Bulletin 575 – Expanded Guidelines for Officers Assessing Work Permit Applications for Intra-Company Transferees with Specialized Knowledge (“OB-575“).  OB-575 introduced more stringent requirements to the Intra-Company Transferee (“ICT“) – Specialized Knowledge program.  Specifically, what constitutes “specialized knowledge” is more restrictive, and most ICT – Specialized Knowledge applicants must now meet the Prevailing Wage.

Specialized Knowledge

Previously, CIC’s Temporary Foreign Worker Manual (“FW1“) specified that ICT – Specialized Knowledge applicants must demonstrate “specialized knowledge” of a company’s product or service and its application in international markets, or an an advanced level of knowledge or expertise in the organization’s processes and procedures.

Effective immediately, OB-575 requires that ICT – Specialized Knowledge applicants demonstrate a high degree of both proprietary knowledge and advanced expertise.  Specialized knowledge is unique and uncommon, and OB-575 states that “it will by definition be held by only a small number or a small percentage of employees of a given firm,” and that “specialized knowledge workers must therefore demonstrate that they are key personnel, not simply high skilled.”  The onus is on applicants to provide evidence that they meet these requirements.

Proprietary knowledge is company-specific expertise related to a company’s product or service.  OB-576 specifically notes that it implies that the company has not divulged specifications that would allow other companies to duplicate the product or service. Although OB-575 does not mandate that “advanced proprietary knowledge” is required, it states that:

Advanced proprietary knowledge would require an applicant to demonstrate:

  • uncommon knowledge of the host firm’s products or services and its application in international markets; or
  • an advanced level of expertise or knowledge of the enterprise’s processes and procedures such as its production, research, equipment, techniques or management.

An advanced level of expertise requires specialized knowledge gained through significant and recent (defined as within the last 5 years) experience with the organization and used by the individual to contribute significantly to the employer’s productivity.  OB-575 notes that:

In assessing such expertise or knowledge, officers consider:

  • abilities that are unusual and different from those generally found in a particular industry and that cannot be easily transferred to another individual in the short-term;
  • the knowledge or expertise must be highly unusual both within the industry and within the host firm;
  • it must be of a nature such that the applicant’s proprietary knowledge is critical to the business of the Canadian branch and a significant disruption of business would occur without the applicant’s expertise;
  • the applicant’s proprietary knowledge of a particular business process or methods of operation must be unusual, not widespread across the organization, and not likely to be available in the Canadian labour market. Example: Skill in implementing an off-the-shelf product would not, by itself, meet the standard of specialized knowledge; unless, for example, the product is new or being highly customized to the point of being a “new” product. In other words, an ICT applicant is more likely to have truly specialized knowledge if they directly contribute to the (re)development of a product, rather than to the implementation of a pre-existing product.

In what is clearly a response to the RBC/iGate fiasco, OB-575 also mandates that officers consider:

  • ICT Specialized Knowledge workers must be clearly employed by, and under the direct and continuous supervision of, the host company;
  • given the nature of specialized knowledge, the worker will not normally require training at the host company related to the area of expertise; and
  • as the specialized knowledge will not be readily available within the Canadian labour market, and cannot readily be transferred to another individual, a specialized knowledge worker must not receive specialized training by other employees such that this would lead to the displacement of Canadian workers.

The following is an example of the approval reasons of an ICT – Specialized Knowledge applicant.  I note that this was not my file, as it is not my practice to post my own cases on this blog. Rather, this case was obtained through an Access to Information Act request.

A201433267_2015-12-18_08-29-36

Mandatory Wage Floor

Effective immediately, ICT – Specialized Knowledge applicants must be paid the Prevailing Wage for their position.  Non-cash per diems, including hotel and transportation, are not to be included in the calculation of the overall salary.

This is perhaps not surprising.  There has been a huge disparity in the wages being provided to Intra-Company Transferees, especially in companies transferring Indian, mainland Chinese, or Filipino workers.  In 2013 Citizenship and Immigration Canada produced a chart for internal use documenting this, as reproduced below.

A201412451_2015-04-28_07-56-04_Page_06

Free Trade Agreements

It is important to note that the above changes do not impact ICT – Specialized Knowledge applicants under Free Trade Agreements, including the North American Free Trade Agreement.  This is because such agreements, which are negotiated between Canada and other countries, specify what the requirements for ICT – Specialized Knowledge applicants are. However, in interpreting those agreements, wage remains an important indicator of specialized knowledge and should be taken into account as an important factor in an officer’s overall assessment.


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