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Amendments to Canada抯 Foreign Worker ManualThursday, April 29, 2010 > 09:28:57
(Lexology – Bill MacGregor and Lesley Love, Gowling Lafleur Henderson LLP)
Immigration Canada maintains a Foreign Worker Manual: (http://www.cic.gc.ca/ENGLISH/RESOURCES/manuals/fw/fw01-eng.pdf) that sets out temporary foreign worker and business visitor guidelines for immigration officers. The Foreign Worker Manual deals with a variety of business visitor and work permit categories. Officers may refer to the Foreign Worker Manual when adjudicating business entries and work permit applications. The Manual provides clues to how officers will interpret work permit and entry categories.
The Foreign Worker Manual is amended from time to time, without notice. Two recent changes of interest to employers and companies are set out below.
“Specialized Knowledge” Intra-Company Transfers to Canada
Both NAFTA and IRPA have a work permit category which assists in the transfer of foreign workers to Canada from a foreign related entity. This category covers managerial personnel as well as “specialized knowledge” workers.
The Foreign Worker Manual has been modified to provide more clarification around what constitutes eligibility as a “specialized knowledge” worker. This has been an ongoing issue in intra-company transferee applications as there have been inconsistencies between different officers and ports of entry in interpreting who is eligible under the specialized knowledge category.
In general, to qualify, the foreign worker must demonstrate “specialized knowledge” of a company’s products or services and their application in international markets, or an “advanced level” of knowledge or expertise in the organization’s processes and/or procedures.
The Manual has added a number of tips to officers, including the following:
• Specialized knowledge workers would usually be in a position that is critical to the company.
• “Advanced knowledge” does not necessarily have to be proprietary in the sense that the company owns the knowledge. However, if it is not proprietary knowledge, the foreign worker’s company must apply it in a unique way that makes it knowledge beyond what is common in the industry.
• The longer the work experience with the foreign-related company, the more likely the person has the requisite level of specialized knowledge. Therefore, personnel who have only just obtained the required one-year of experience with the foreign company to be eligible to apply for an ICT work permit may not be viewed as having enough experience to have gained the required level of specialized knowledge. In addition, it will be more difficult for low-skill NOC positions and for persons without post-secondary degrees to show that they have specialized knowledge.
• If the specialized knowledge may be obtained by a short period of in-house or on-the-job training, it is probably not very specialized.
In short, the additions to the Manual reflect a trend over the last number of years that foreign workers applying under the specialized knowledge intra-company transferee category will be closely scrutinized to see if the worker and the position are truly at a high enough level to be eligible under the specialized knowledge category. It is therefore important for work permit applications in this category to address these various points in detail.
Intra-company transferee work permits for start-ups
Guidelines for assessing start-up situations for intra-company transferee category work permit applications have been added to the Foreign Worker Manual.
This is a situation where the foreign company has started a new Canadian subsidiary or branch office and wishes to transfer foreign workers to take up positions with the start-up in Canada. The guidelines reflect an approach that the U.S. has used for many years when assessing transfers to start-ups under the L-1 Work Visa category, the U.S. version of the intra-company transferee category.
Special rules have been introduced. For the company involved, the company must secure physical premises to house the Canadian operation, must furnish a realistic business plan relating to staffing the new operation, and must demonstrate the financial ability to operate the business and hire employees in Canada.
For managerial level transferees, it must be shown that the Canadian operation will be large enough to support a management function. For specialized knowledge workers, the company must demonstrate that it will be doing business in Canada and that the specialized knowledge worker will be directed by management at the Canadian operation.
The initial work permit for a start-up company is one year, as opposed to the usual three-year work permit issued under the intra-company transferee category.
The reason for the one-year duration is that this will provide an opportunity for Immigration Canada to review the situation one year later before issuing a renewal. For renewals, the company must show that the new Canadian office or entity has engaged in the continuous provision of goods or services for the past year and that the new entity in Canada has been staffed.
Presumably, the policy reason behind the special rules for start-ups is to ensure that the intra-company transferee category is not used as a vehicle to obtain work permits where there is no intention to have a real business within Canada. It may also be aimed at preventing foreign companies from being able to use this category to obtain work permits for temporary service providers who need to move in and out of Canada to provide services to various Canadian customers, where the company does not have a true presence “on the ground” in Canada.