Canada’s Temporary Foreign Worker Program (TFWP) allows for the transfer of Executives, Senior Managers and Specialized Knowledge workers from a foreign entity to a related affiliate, branch, parent or subsidiary in Canada. The Intra-Company Transferee (ICT) exemption from the general requirement to obtain a Labour Market Opinion (LMO) from Employment and Social Development Canada (ESDC) provides one of the quickest and most convenient methods for certain categories of foreign business persons to work in Canada.

Recently, Citizenship and Immigration Canada issued expanded guidelines that would restrict the availability of this exemption, making it more difficult for multi-national employers to transfer employees to Canada from abroad. On June 9, 2014, Citizenship and Immigration Canada  (CIC) issued Operational Bulletin 575 entitled “Expanded Guidelines for Officers Assessing Work Permit Applications for Intra-Company Transferees with Specialized Knowledge” (OB 575) which continues the government’s trend of tightening foreign worker policies in an effort to ensure that Canadians have the first chance at available jobs. The additional assessment criteria in OB 575 will likely make it more difficult for employers to obtain work permits for certain Specialized Knowledge ICTs. Effective immediately, temporary foreign nationals must demonstrate that they possess both proprietary knowledge and advanced expertise in order to qualify as ICTs under the Specialized Knowledge category. OB 575 further clarifies that “host” companies must clearly employ and directly supervise Specialized Knowledge ICTs and restricts the types of training that they can receive. The guidelines  also introduce a mandatory wage floor for certain Specialized Knowledge ICTs to ensure that they are remunerated according to the prevailing wage for an equivalent specialist in the Canadian labour market.

Definition of "Specialized Knowledge"

Under the General Agreement on Trade andServices (GATS), an ICT Specialized Knowledge worker must possess “knowledge at an advancedlevel of expertise” and “proprietary knowledgeof the company’s product, service, research,equipment, techniques or management.” OB 575 reinforces the fact that certain ICT applicants must demonstrate that they possess a high degree of both proprietary knowledge and advanced expertise. Proprietary knowledge alone, or advanced expertise alone, does not qualify applicants under the ICT Specialized Knowledge  exemption.

(i) Proprietary  Knowledge

Proprietary knowledge is company-specific expertise related to a company’s product  or services. To qualify, an applicant must demonstrate either uncommon knowledge of the host company’s products or services relevant to the company’s activity in international markets or advanced expertise in the company’s operations.

(ii) Advanced Expertise

Advanced expertise requires “specialized knowledge” gained through significant experience with the host company within the previous five years and used by the applicant to “contribute significantly to the employer’s productivity”. Applicants must demonstrate that they are key personnel rather than simply highly skilled.

In assessing advanced expertise, officers are instructed to consider the following factors:

  1. the applicant’s “unique and uncommon” expertise or proprietary knowledge within the host company and the relevant industry;
  2. the availability in the Canadian labour market of equivalent knowledge or expertise, and the ease with which the knowledge or expertise could be transferred to another individual; and
  3. whether a “significant disruption” of business would result to the host company in Canada without the applicant’s knowledge and expertise.

Modified Definition of “Specialized Knowledge” Under Certain Bilateral Agreements

Applicants from countries with which Canada maintains bilateral Free Trade Agreements (FTAs) will be assessed under the relevant FTA regime governing LMO-exempt ICTs. The differing definitions of “specialized knowledge” under these regimes are supposed to be respected. For example, the Canada- Colombia Free Trade Agreement (CCFTA) and the Canada-Peru Free Trade Agreement both provide that a “specialist” possess either specialized knowledge of the company’s products or services and its application in international markets or advanced expertise in the company’s operations, not both.

By extension, OB 575 suggests that Specialized Knowledge ICTs under the NorthAmerican Free Trade Agreement (NAFTA), a multilateral agreement between Canada, the United States and Mexico, need only demonstrate either specialized knowledge of the company’s products or services and     its application in international markets, or an advanced level of knowledge or expertise in the organization’s operations. The NAFTA does not require an assessment of the availability of the skill set within the Canadian labour  market or that the specialized knowledge be proprietary. Unfortunately, OB 575 does not specifically state that the definition of “specialized knowledge” under the NAFTA should be respected and will undoubtedly lead to confusion.

Additional Employment Criteria

Beyond the specialized knowledge requirements, additional factors regarding the structure of the employment relationship and required training will be considered. The ICT must be clearly employed by, and under the direct and continuous supervision of, the host company. Further, the ICT should not receive specialized training that would lead to the displacement of Canadian workers, or require additional training in their area of expertise.

Mandatory Wage Floor

OB 575 instructs officers to consider whether the remuneration to be paid to an ICT is consistent with the Canadian prevailing   wage for an equivalent specialist within the specific occupation and region of work. The Canadian prevailing wage will be determined using ESDC’s “Working in Canada” website’s wage outlook tool. This represents a stricter standard from an earlier Operational Bulletin related to the assessment of ICTs released  on July 4, 2011 (OB 316), that indicated specialized knowledge ICTs should be compensated at a realistic approximation of the average wage for the stated occupation in the specified geographical location.

The mandatory wage policy does not apply to applicants entering pursuant to the NAFTA or to any future or current FTAs containing articles governing the entrance of LMO- exempt specialized knowledge ICTs. However, a specialized knowledge ICT’s remuneration will still be an important and relevant indicator of whether an applicant possesses specialized knowledge under a FTA. This is similar to the guideline provided in the earlier OB 316 that salary is one of a number of factors that should be used by officers to determine if the application supports the claim of specialized knowledge.

Conclusions

Employers, particularly those involved in  the IT sector, should expect much greater scrutiny of specialized knowledge ICT work permit applications and be prepared to demonstrate that prospective ICTs meet the new assessment criteria. Indeed, employees who previously qualified as specialized knowledge ICTs may now require their Canadian employers to obtain LMOs for their positions.