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Intra-Company Transfer – Specialized Knowledge

There has recently been a revision to the definitions governing the admission of intra-company transferees under the Specialized Knowledge provisions. Previously, a transferee with evidenced specialized expertise in a company’s systems or advanced expertise in a discipline relevant to the company’s business may have been eligible for the issuance of a work permit in the absence of a Labour Market Impact Assessment (LMIA; formerly, Labour Market Opinion). The wage of such a transferee was not a criterion in the assessment process, unlike LMIA applications, in which the concept of prevailing wage is an important determinant in the outcome of an application.

Recent changes see an expansion of the criteria governing the specialized knowledge transferee. While the underlying principles remain intact, the level of expertise and importance to the organization increases significantly. Importance to the organization, in fact, is an entirely new concept in this category of application, which may be a logical extension, but which was not a factor earlier.

The transferee must now demonstrate that s/he possesses advanced expertise and proprietary knowledge concerning factors such as the methods, procedures, systems, techniques, management or other operational process relevant to the organization’s business. One or the other is no longer sufficient; the applicant has the onus of responsibility to satisfy both. In the descriptions of advanced expertise and proprietary knowledge, Citizenship and Immigration Canada (CIC) focuses on the expectation that the skill-set of the transferee should be uncommon within the company and unusual within the marketplace. The expectation is that such expertise is derived through significant and recent experience in the organization, and could not easily be imparted to a Canadian not found in this labour market. As a result of this, this class of transferee is not expected to be the recipient of specialized training from others within the company, although separate provisions of intra-company trainee do exist.

The Specialized Knowledge Transferee is expected to be a significant contributor to the productivity of the organization. The officer may look for evidence that the employee is considered a key resource, which is – in fact – a concept present in the earlier criteria. The expansion of this, however, is that there would be a significant impact on the operations of the Canadian division of the company in the absence of the transferee, and that there would be significant disruption to its business in such a case. As a key resource in the company, the transferee may possess information that is confidential, protected from others within the organization and certainly from industrial competitors. The wage of the transferee would be regarded as one component of his key status in the company, and prevailing wage statistics will be used to ensure that such wages are – at least – consistent with those in the Canadian marketplace. The exception to this rule is for transferees under the North American Free Trade Agreement, where the treaty does not permit this consideration.

Some of the criteria of the program do remain the same. The transferee must have been employed by the organization outside of Canada for a period of at least one year in the three prior to the application, and the maximum duration for which this work permit may be held is five years (seven for Senior Managers and Executives). The foreign and Canadian divisions must still be engaged in ongoing substantive business operations, and the two divisions must meet the definition of parent/subsidiary, affiliate, or branch.

What does all of this mean? It puts more discretion in the hands of the official assessing the intra-company transfer. While there is tremendous expansion on the various concepts involved, there remains a fair degree of vagueness about some of the individual elements and of the combination of them all. It is apparent that CIC wishes to ensure that the eligible transferee is indeed special to the organization and not just any employee who has a general understanding of its inner workings.

Date Posted: July 29, 2014 Posted In: Labour Mobility,Temporary Work Permits

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