Intra-company transfers (ICTs) are a category of work permit based on an exemption to the need for a Labour Market Impact Assessment (LMIA). LMIAs require a testing of the Canadian labour market. ICTs are an important tool to allow corporations with operations in Canada and abroad to move senior personnel (senior managerial or ‘specialized knowledge’) to Canada relatively easily (without testing the labour market).
Very broadly, the general requirements for ICTs have been:
- Confirmation that the Canadian and foreign companies are related
- Confirmation that the employee being transferred has senior managerial/executive capacity or specialized knowledge
- Confirmation that the employee has been with the foreign entity for at least one year (and is currently working there).
Note that there is not just one legal basis for an ICT. ICTs can be processed in accordance with one of many free trade agreements (e.g. CUSMA, CETA, CPTPP, etc.), or, if no free trade agreement applies, then in accordance with the Immigration and Refugee Protection Regulations (IRPR). There are some nuanced differences under some of the legal sources, but generally, the above guidelines apply across the board.
The Canadian government has now updated some of its guidance in the considerations of approvals of ICT applications for IRPR-based ICTs. To be clear, free trade agreement-based ICTs do not appear to be impacted at this time, though it would seem that some crossover is inevitable.
Under the new guidelines, officers adjudicating IRPR-based ICTs must now consider various items including, but not limited to, the following:
- For the company:
- Whereas previously, median wage requirements did not apply to managers/executives, now they do (as well as for specialized knowledge workers, as before).
- The foreign organization must be a multinational This means that the it must have active businesses in at least two countries, before establishing in Canada.
- Start-up enterprises in Canada will be impacted. It will be more difficult to use this provision for start-up situations. Those seeking to enter Canada to establish a new business, will need to do so as business owners coming for a temporary purpose (another LMIA exemption [C11]).
- ‘Affiliation’ of the entities is to be determined by ownership and control, and may not include relationships based on contracts, licensing, franchising, supplier/client, or other similar non-ownership/control based relations.
- The position abroad must remain available to the foreign worker once the task in Canada is complete.
- This does not seem to change the reality that workers can have ‘dual intent’, and may seek permanent residence after time in Canada.
- The Canadian operation must be a physical commercial premises. It cannot be shared office space, a residential home, or any kind of virtual business or one just having a mailing address.
- For the employee:
- The Canadian job must be ‘equivalent to’ the one held abroad. Though it may require more guidance, it is not uncommon for such instruction to be flexible enough to encompass work within the same NOC code, even if slightly different.
- Remote work will generally not be allowed; the reason to be in Canada must be justified.
- Only full-time prior work will be counted.
There are certainly more details to these new provisions, and employers should consult with counsel with regard to specific needs.
The information in this article is for general purposes only, and not intended as legal advice for any particular situation.