On September 19 2011 Citizenship and Immigration Canada (CIC) published Operational Bulletin 346, which authorises the recapture of unused time that would otherwise count against the time limits usually imposed on foreign nationals working in Canada as intra-company transferees. This means that intra-company transferees can now extend their status beyond the normal seven and five-year limits that would otherwise apply if they have spent part of the validity period of their prior work permits outside Canada.

According to Section 5.31 of the Foreign Worker Manual (which describes C12 intra-company transferees) and Appendix G (which describes North American Free Trade Agreement (NAFTA) intra-company transferees), executive and managerial intra-company transferees are limited to a maximum stay of seven years and specialised knowledge intra-company transferees are limited to a maximum stay of five years; this mirrors the time limits imposed on L-1A (executive and managerial) and L-1B (specialised knowledge) non-immigrants in the United States. Once the limit has been reached, the foreign national must complete one year of full-time employment with the multinational organisation outside Canada before becoming eligible for a new seven or five-year limit.

Unfortunately, most CIC and Canadian Border Services Agency officers would calculate these time limits using the start and end dates shown on a foreign national's work permit. While this simplifies the task of calculating the time limits, it fails to acknowledge the fact that many intra-company transferees divide their time among one or more international offices. Some intra-company transferees continue to reside abroad and travel to their company's Canadian offices only when necessary. As a result, a foreign national who held a three-year work permit as an intra-company transferee but who spent only four months of each year physically in Canada would still have the entire three-year period of the work permit counted against his or her total limit.

In the United States, exceptions to the seven and five-year time limits imposed on L-1A and L-1B non-immigrants are recognised in the Department of Homeland Security regulations, which state that the time limits do not apply to aliens who do not reside continually in the United States and whose employment in the United States is seasonal or intermittent, or consists of an aggregate of six months or less per year. In addition, the limitations do not apply to aliens who reside abroad and regularly commute to the United States to engage in part-time employment.

The above exceptions have been expanded by a US Citizenship and Immigration Services (USCIS) policy memorandum, which now permits the recapture of any days spent outside the United States. However, US Customs & Border Protection (USCBP) does not necessarily follow USCIS guidance when adjudicating L-1 petitions filed on behalf of Canadian citizens at airport pre-clearance facilities in Canada or at ports of entry along the Canada-United States border; most Canadian citizens will seek L-1 status through USCBP rather than USCIS. Nevertheless, even the more restrictive language contained in the Department of Homeland Security regulations offers exceptions to the L-1 limits that were previously unavailable in Canada.

Prior to Operational Bulletin 346, practitioners would argue that the Canadian intracompany transferee category (at least in NAFTA cases) was intended to be reciprocal and that, since Canadians who entered the United States under L-1A or L-1B status would be entitled to recaptured time, foreign nationals should be entitled to the same treatment. However, such arguments often met with limited success.

Operational Bulletin 346 now specifically recognises that time spent outside Canada during the period of the work permit may be recaptured. It states as follows:

"Normally, the duration of the work permit is used to calculate the maximum five or seven year time limit that an intracompany transferee is allowed to work in Canada. However, time spent outside Canada during the duration of the work permit can be recaptured. For example, if intracompany transferee senior managers have a work permit for one year and spend two 2-month stints over the course of the 12 months working in the U.S., then only 8 months would count against their seven-year limit as intracompany transferees. In summary, documented time spent outside Canada can be 'recaptured' to allow the intracompany transferee five or seven full years of physical presence in Canada."

Foreign workers with Canadian intra-company transferee work permits who wish to take advantage of Operational Bulletin 346 should ensure that they maintain detailed records of all trips outside Canada during the period of their work permits.

For further information on this topic please contact Henry J Chang at Blaney McMurtry LLP by telephone (+1 416 593 1221), fax (+1 416 593 5437) or email ([email protected]).