On June 9, 2014, Immigration, Refugees and Citizenship Canada 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 – 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
In order to qualify as an Intracompany Transeferee (“ICT“) – Specialized Knowledge applicantsmust demonstrate a high degree of both proprietary knowledge and advanced expertise. Specialized knowledge is unique and uncommon, and according to the Immigration, Refugees and Citizenship Canada (“IRCC“) website “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. It implies that the company has not divulged specifications that would allow other companies to duplicate the product or service. Although IRCC does not mandate that “advanced proprietary knowledge” is required, it states that:
Advanced proprietary knowledge would require an applicant to demonstrate:
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- uncommon knowledge of the host firm’s products or services and its application in international markets; or
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- 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. The IRCC website notes that:
In assessing such expertise or knowledge, officers consider:
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- 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;
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- 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, the IRCC website also mandates that officers consider:
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- ICT Specialized Knowledge workers must be clearly employed by, and under the direct and continuous supervision of, the host company;
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- given the nature of specialized knowledge, the worker will not normally require training at the host company related to the area of expertise; and
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- 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.
Occupation
An ICT position must be of a NOC level that is similar to the person’s home position or higher, unless the applicant is able to satisfy the visa officer that an exceptional situation exists.
A good case for specialized knowledge could involve high-skill NOC codes (A, B and 0) with the appropriate degree and extensive experience in the company. For a person with a high-skill NOC code position, an appropriate degree and only 1 year in a company, a case has to be made by the client as to how the person possesses both proprietary knowledge and advanced expertise.
The IRCC website contains the following example:
Mandatory Wage Floor
If a worker possesses the high standard of specialized knowledge that is uncommon in a particular industry, then the salary or wage should be consistent with such a specialist. Such a specialist would typically receive an above average salary; therefore, a wage floor set at prevailing wage levels will establish a baseline for the assessment of an application.
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.