Immigration Refugees and Citizenship Canada’s (“IRCC“) International Mobility Program allows companies to transfer key personnel to Canada without them needing to first obtain a Labour Market Impact Assessment if they meet the requirements of IRCC’s Intra-Company Transferees (“ICT“) program.
ICT work permits will typically be valid for one year if the Canadian entity is a start-up, and three years if it is established. Extensions may be granted up to five years for employees working in a Specialized Knowledge capacity, and seven year for Senior Managers and Executives. As well, documented time spent outside Canada during the duration of the work permit can be “recaptured” to allow the ICT five or seven full years of physical presence in Canada.
As the Federal Court of Canada noted in Chamma v. Canada (Citizenship and Immigration), all of the following requirements must be met.
1) The prospective Canadian employee must be at the time of application employed by a multi-national company and be seeking entry to Canada to take a position in the Canadian company.
Under the ICT provisions a foreign transferee must form an employer-employee relationship with the Canadian branch of the company to which they are being transferred must exist. The essential element in determining this relationship is the right of the employer to order and control the employee in the performance of their work.
2) There must be a qualifying relationship between the Canadian company and the foreign company.
The Canadian and foreign enterprises must be legal entities that have a parent, subsidiary, branch or affiliate business relationship.
A parent company means a firm, corporation or other legal entity which has subsidiaries.
A subsidiary refers to a firm, a corporation, or other legal entity of which a parent owns:
- directly or indirectly, half or more than half of the entity and controls the entity; or
- owns, directly or indirectly, 50% of a 50-50 joint venture and has equal control and veto power over the entity; or
- owns, directly or indirectly, less than half of the entity, but ,in fact, controls the entity.
An affiliate means:
- one of two subsidiaries, both of which are owned and controlled by the same parent or individual; or
- one of two legal entities, owned and controlled by the same group of individuals, each individual owning and controlling approximately the same share or proportion of each company.
3) The Canadian company must be established and actively doing business, although there are special rules for start-ups.
Start-up companies must secure physical premises to house the Canadian operation before the employee is transferred. However, where the transferring foreign national is an Executive or Senior Manager, it is acceptable if there is not yet a physical premise for the company because the transferring employee will be securing such a location.
In order for an ICT application to be approved where the Canadian entity is a start-up, the following requirements apply:
- The company must furnish realistic plans to staff the new operation;
- The company must have the financial ability to commence business in Canada and compensate employees;
- When transferring executives or managers, the company must demonstrate that it will be large enough to support executive or management function.
- When transferring a specialized knowledge worker, the company must demonstrate that it is expected to be doing business and ensure that work is guided and directed by management at the Canadian operation.
For both existing Canadian companies and start-ups, it is necessary that immigration officials be satisfied that both the foreign and Canadian affiliate are (or will be) actively doing business. Doing business means regularly, systematically, and continuously providing goods and/or services by a parent, branch, subsidiary, or affiliate in Canada and the foreign country, as the case may be.
4) The employee must be working in an Executive, Senior Managerial or Specialized Knowledge capacity.
An Executive Capacity means that the employee primarily:
- directs the management of the organization or a major component or function of the organization;
- establishes the goals and policies of the organization, component, or function;
- exercises wide latitude in discretionary decision-making; and
- receives only general supervision or direction from higher level executives, the board of directors, or stockholders of the organization.
A Senior Managerial capacity means that the employee primarily:
- manages the organization, a department, subdivision, function, or component of the organization;
- supervises and controls the work of other managers or supervisors, professional employees, or manages an essential function within the organization, or a department or subdivision of the organization.
- has the authority to hire and fire, or recommend these and other personnel actions, such as promotion and leave authorization; if no other employee is directly supervised, functions at a senior level within the organization hierarchy or with respect to the function managed; and,
- exercises discretion over the day-to-day operations of the activity or function for which the employee has the authority.
A worker in a Specialized Knowledge capacity must possess both knowledge at an advanced level of expertise and proprietary knowledge of the company’s product, service, research, equipment, techniques or management.
Proprietary knowledge is company-specific expertise related to a company’s product or services. It implies that the company has not divulged specifications that would allow other companies to duplicate the product or service.
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.
In assessing such an advanced 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; and
- 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.
Specialized knowledge workers must be paid the prevailing wage rate in their Canadian geographic location for the position that they will be assuming.
5) The employee must have been continuously employed (via payroll or by contract directly with the company) by the foreign company that plans to transfer him or her, outside Canada in a similar full-time position for at least one year in the three-year period immediately preceding the date of the initial application.
It is important to note that if the foreign national has not had full-time work experience with the foreign company, then officers will consider other factors before refusing an ICT application solely on this basis. The factors include:
- the number of years of work experience with the foreign company;
- the similarity of the positions (short-term vs. long-term);
- the extent of the part-time position (i.e., two days/week versus four days/week); and
- whether the entry of the foreign national appears to be an abuse of the ICT provision.
6) The person must be coming to Canada for temporary entry only.
7) The employee must comply with all immigration requirements for temporary entry.
More information about Canada’s ICT program can be found here.