Category: ImmPulse™ Newsletter

Introduction

One of the most important work permit categories in Canadian immigration law is certainly that of ‘Intra-Company Transfer’ (ICT). In general terms, this LMIA exemption allows corporations to send foreign workers to Canadian affiliates if they meet certain conditions, including:

• Establishment of the appropriate corporate relationship between the sending (foreign) and receiving (Canadian) entities,
• Confirmation that the person has worked for the foreign affiliate for at least 1 year in the last 3 (with some exceptions), and
• Evidence that the person will be filling an executive, senior managerial, or specialized knowledge role.

There are certainly other details to consider, but these are the essential elements of an ICT application.

It is also important to note that there are multiple legal bases for ICT applications – some can be processed under the ‘general’ regulations, and some are processed under applicable Free Trade Agreements (FTAs) including NAFTA, the Canada-European Union Free Trade Agreement (CETA), and the Comprehensive and Progressive Free Trade Agreement (CPTPP). Though all the ICT provisions at this time are similar, there are differences of nuance in some circumstances.

Immigration, Refugees and Citizenship Canada (IRCC) has just provided some guidance to its field officers with regard to ICTs, which guidance should be used by ‘end users’ (i.e. corporations and their employees relying on this category, as well as their representatives) to ensure that they meet the requirements that adjudicating officers are looking for.

Regulatory-based vs. FTA Intra-Company Transfer Applications

The primary IRCC guidance issued is that ICT applicants should have their cases processed based on the legal criteria requested – that is, either the general regulatory provisions, or a particular FTA, as the case may be. As noted, most ICT provisions are similar, but there may be differences in some situations, such as, for example,

• The fact that the Canada-Peru Free Trade Agreement allows for ICT after only 6 months of employment with a foreign affiliate, AND, it also allows for consideration of Peruvian permanent residents (while in all other cases, considerations are based on citizenship).
• IRCC guidance for CETA implies that extensions of CETA ICTs may be limited to 18 months, with officer’s discretion, after an initial 3 year maximum period.

Recaptured Time

ICT-based work permits have general maximum validity periods – 5 years for specialized workers, and 7 years for managerial workers (these may be reached through multiple renewals after initial approval). To determine whether a worker has met his or her cap, officers first look at the actual work permits, but time may be ‘recaptured’ if evidence is presented that part of the time was spent not working, or not working in Canada.

IRCC’s new guidance now says that recapture will not be considered for any time periods of less than 30 consecutive days. This may be problematic for workers who travel frequently, and for periods of less than 30 days.

Further, in the event that a work permit renewal is issued that accounts for recaptured time, IRCC has confirmed that time spent not working during that new period cannot now be reused for the purpose of further recapture.

Start-Up Scenarios

Typically, ICTs will occur where a company already has an established business in Canada (as well as, of course, abroad). In some situations though, where a company is launching anew in Canada, ICTs will be allowed for such ‘start-up’ scenarios. However, in such start-up scenarios, IRCC is seeking additional information and documentation to support the application. IRCC is indicating (or in some cases, confirming) that, among other matters:

• Where the initial transferee is in a specialized position, it will generally be expected that the business already has premises in Canada. [Allowance is made for managerial-level employees who may indeed be coming to start the operation, and who may therefore be tasked with finding premises.]
• The transfer of executives/managers must be supported by evidence that the business is large enough to support such functions
• Where the transfer is of a specialized knowledge worker, the worker should be directed by management at the Canadian operation, and
• Initial work permits in start-up scenarios are for 1 year only; renewal will require evidence that the new Canadian operation has engaged in the continuous provision of goods or services for the prior year, and that the new office has been staffed.

Multiple Short-Term Projects/‘Parachuting’

In prior guidance, IRCC indicated that foreign companies with Canadian clients should not use their Canadian affiliate companies (who are otherwise uninvolved in the situation) as vehicles simply to allow the foreign companies’ foreign workers to ‘parachute’ in to Canada to carry out their duties. In what appears to be a shift from such prior guidance, IRCC has indicated that where a foreign company has a project or projects in Canada, it may issue an ICT work permit (using the Canadian operation) for up to 1 year to facilitate the need for the foreign worker to fulfill his duties. This seems to be a variation to prior guidance. The new guidance does still restrict such ‘parachuting’ to 1 year maximums.

Summary

Some of the above may have significant impact on various ICT applications, and corporations, and their representatives, who wish to utilize ICT provisions to send foreign workers to Canada should be aware of the changes.

The information in this article is for general purposes only, and not intended as legal advice for any particular situation.

A Labour Market Impact Assessment (LMIA) is the process by which an employer in Canada must justify why a foreign worker should be hired, rather than a Canadian (citizen or permanent resident). Though there are exceptions to the LMIA requirement (e.g. certain professional categories), where an LMIA is sought, various actions must be taken and conditions met, and the nature of such actions/conditions will sometimes be dictated by whether the position to be filled is considered High-Wage or Low-Wage. For instance, High-Wage positions require a ‘transition plan’ – a plan whereby the employer shows how the position will be transitioned to a Canadian in the future, and Low-Wage positions are subject to maximum numbers of positions proportional to the overall number of employees in the company.

The dividing line between High-Wage and Low-Wage workers is set by Employment and Social Development Canada (ESDC), and is done on a province by province bases. The  Low-Wage/High-Wage cut-off is set to change effective April 22, 2019, and as such, employers must be aware of whether a position being filled is considered Low-Wage or High-Wage based on the new criteria. Otherwise, incorrect procedures may be followed, and incorrect requirements will be pursued – and applications will therefore fail. The new wage guidelines can be found at https://www.canada.ca/en/employment-social-development/services/foreign-workers/median-wage.html.

Employers in Canada, and those that assist them, should therefore be aware of these new wage guidelines.

[Note that the consideration of the Low-Wage/High-Wage cut-off is separate from the consideration of the appropriate salary for a particular position based on NOC code. Appropriate salary must indeed be paid for any particular positions as per median wage guidelines found at https://www.jobbank.gc.ca/trend-analysis/search-wages, but whether or not that position will be considered High-Wage or Low-Wage – and therefore what LMIA application considerations/requirements are appropriate – are based on the ESDC guidelines set out in the first link above.]

The information in this article is for general purposes only, and not intended as legal advice for any particular situation.

Like other provinces, and in accordance with an agreement with the federal government, Ontario maintains an immigrant nominee program (OINP). The OINP has various categories including allowances for immigration based on investment, as well as based on skilled worker criteria.

With its recent budget, the government of Ontario has proposed some sweeping changes to the OINP.  It is important to note that though the OINP is ultimately a permanent residence scheme, nomination under the program will often lead to the ability to secure work permits until permanent residence is finalized, and as such, employers (as well as prospective employees) should be aware of both the permanent and temporary immigration benefits of the system.

Though details with regard to some of the proposed changes are not fully available as yet, some of the proposed modifications include:

• A new High-Tech Workers Stream
• A new immigration pilot for smaller communities
  • This presumably would mirror the existing federal Atlantic Immigration Pilot and Northern and Rural Immigration Pilot programs (see http://www.kranclaw.com/2019/01/new-rural-and-northern-immigration-pilot-project/), designed to allow employers in those areas to meet their labour market needs.
• Expansion of occupations eligible under the In-Demand Skills Stream. New occupations are expected to include:
  • Truck Drivers
  • Personal Support Workers
• A ‘recalibration’ of the Entrepreneur Stream
  • Among other current requirements, investment thresholds would change to be more competitive with other provinces. Currently investment thresholds are:
    • CDN$1M if the business is located in the Greater Toronto Area (GTA), and
    • CDN$500,000 if the business is located outside the GTA.

We will provide readers with further salient details as they become available.

The information in this article is for general purposes only, and not intended as legal advice for any particular situation.

Subject to various exemptions (e.g. intra-company transfers, certain professionals, etc.), employers seeking to hire foreign workers in Canada must seek a ‘Labour Market Impact Assessment’ (LMIA) through a process which requires them to substantiate that a Canadian is not available to fill a position. Only after the issuance of a positive LMIA may a foreign worker seek a work permit for that position.

Under the ‘Temporary Foreign Worker Program’, LMIA requirements are dictated by Employment and Social Development Canada (ESDC), and the program is administered by another department called Service Canada. Note that there are various subcategories of LMIAs including those based on the Global Talent Stream (GTS – primarily for high-tech workers), the Permanent Residence Stream, and the Low-wage and High-wage Streams. Processing times can and do vary for each of the available streams.

ESDC has just announced that anticipated processing times for certain categories of LMIAs will be increasing due to growing demand. While GTS LMIAs are still to be processed in their targeted 10 business day processing cycles, High-wage stream LMIAs processing times are now being estimated at 106 business days. Processing times will vary depending on the location of the application and other variables, but these are basic averages. Other estimates are 102 business days for Low-wage Stream LMIAs and 39 days for the Permanent Residence Stream.

Canadian employers and prospective foreign workers must be cognizant of such processing times, and govern themselves accordingly.

The information in this article is for general purposes only, and not intended as legal advice for any particular situation.

The Whirlpool Bridge is a Port of Entry that links Niagara Falls, Ontario, and Niagara Falls, New York. It is a dedicated Port of Entry for NEXUS travelers. Due to repairs, the bridge will be closed from April 1 to May 5. NEXUS travelers may use the nearby Queenston-Lewiston or Rainbow Bridges, which will provide expanded operations during this time, or the Peace Bridge, which connects Fort Erie, Ontario and Buffalo, New York.

The information in this article is for general purposes only, and not intended as legal advice for any particular situation.

 

Canada permits students who graduate from approved Canadian educational institutions to receive open work permits. The validity period of such ‘Post-Graduate Work Permits’ (PGWP) corresponds to the length of the course of study, to a maximum of three years. These are open work permits which allow these post-graduate students to work for any employer. The experience gained by these now foreign workers can also be important for their future permanent residence applications.

Canada has updated some of the policies and procedures in securing such work permits. Among other important updates and clarifications for the program, are:

• Eased requirements concerning the applicant’s status at the time of application, and the amount of time available to submit the PGWP application. These issues have often created difficulties for students to seek their PGWPs. Under the new scheme:
  • The requirement to hold a valid study permit at the time of application submission has been removed. [However, for inland applications by students still in Canada, they must still have valid status of some sort.]
  • The application can now be submitted up to 6 months after notification of completion of the program, rather than 90 days. [Note that time runs from the first form of notification, whether that be receipt of transcripts, formal notification of completion, or otherwise.]
• Where an applicant requires a visa and is applying outside Canada, a PGWP approval will also garner a Temporary Resident Visa (TRV), allowing travel. (Note that where an application is filed inland, and the applicant travels abroad, he/she will need a new TRV, if necessary, to allow travel back to Canada.)
• Where a student has accelerated their studies (e.g. they have completed a three-year program in two years), the PGWP may be issued for the ordinary length of the program (i.e. three years in this example).
• Distance (including online) learning is not eligible for a PGWP. If the program has more than a 50% distance learning component, it will be considered ineligible.
• Where a Canadian educational program has an overseas component, only the time spent in Canada will be counted for the PGWP.
• Students who apply for their PGWPs before the expiry of their study permits may work full time without a work permit while awaiting the work permit application decision.
• While the program is for full-time students, where a student needed only part-time study in their final academic session (as they did not need additional credits to complete the program), they will still be considered eligible for a PGWP.

These are some of the highlights of the recent pronouncements by the government. Certainly, PGWPs can be a boon for both worker (formerly student), as well as prospective employers seeking new talent.

The information in this article is for general purposes only, and not intended as legal advice for any particular situation.

Immigration, Refugees and Citizenship Canada (IRCC) has announced a new pilot project to promote immigration to rural and northern communities so that they can meet their labour market needs.

The program is rather complex, but some basic information is as follows:

To participate, interested communities work with local economic development organizations to apply to IRCC to be considered for the program. Selected communities will receive some benefit in supporting immigrant applications.

Eligible Communities

To be eligible, a community must either:

• Have a population of less than 50,000 and be at least 75km from a core metropolitan area, or
• Have up to 200,000 people and be considered remote from other large cities.

The program is available only in certain provinces and territories, namely, Alberta, British Columbia, Manitoba, Northwest Territories, Nunavut, Ontario, Saskatchewan, and Yukon.

The selected communities will need to have the ability to settle newcomers including resources with regard to, for example, housing, transportation, and health care.

Economic Development Organizations

An Economic Development Organization can include, for instance, a chamber of commerce, or other not-for-profit economic development group.

Working with local municipal officials, such organizations develop strategic plans for economic development in an area, and will lead the process for a particular region.

Process

The community development organization, with support from local officials, submits an application based on its economic development plan, and will be expected to manage the pilot in the relevant community. Applications (at least for this initial pilot phase) must be submitted by march 1, 2019.

The full details of what assistance is then provided by IRCC are not yet fully expounded upon, but presumably, selected communities will be able to support applicants for permanent residence destined to their region/employers in their region. (This may in turn allow for some interim work permit allowances, but this is not fully clear at this time.)

We will of course provide further details as the information becomes available, but at this time, we simply wished to apprise readers of the new program. If there are employers/economic groups/municipalities in appropriate areas for whom this may be of interest, it is time to consider an application which may be of benefit in securing immigrants in the near future, and to consider the details of such an application.

The information in this article is for general purposes only, and not intended as legal advice for any particular situation.

Over the last number of years, Canadian visa processing offices have moved away from direct intake of most immigration applications, and instead began utilizing Visa Application Centres (VACs) to screen incoming applications before they are provided to the visa processing office. (This is in addition to the availability of online processing, now available for most situations). VACs also facilitated other non-online functions such as transferring passports to and from visa offices when they were needed for the finalization of a matter, and collecting biometrics. Note that there are still a few functions which VACs do not undertake including intake of applications for Temporary Resident Permits and Rehabilitation, and VACs are also not involved in the Express Entry system.

Recently, Immigration, Refugees and Citizenship Canada (IRCC) announced some changes in VAC facilities and processes. Among other matters, provision of biometric information will now be by appointment only (walk-in facilities had been available in most locations prior to November 2, 2018). In addition, there will be service fees for various items not previously charged for, such as transferring of passports.

In addition to changes in services and related charges, there are changes to VAC locations. Some VACs are closing, some are moving, and some are changing management. For a full list of which VACs are undergoing changes, and additional links to details about VAC offices worldwide, please see https://www.canada.ca/en/immigration-refugees-citizenship/news/notices/details-vac-service-changes-asia-americas-2018.html#services.

Notwithstanding the availability of online facilities for immigration matters, VACs remain crucial for various functions, particularly as the need for provision of biometric increases.

The information in this article is for general purposes only, and not intended as legal advice for any particular situation.

Employment and Social Development Canada (ESDC), which oversees the Temporary Foreign Worker Program, has recently announced that processing times for Labour Market Impact Assessments (LMIAs) has slowed due to increased volume.

No clear details were given of specific processing timeframe impacts, but the announcement did say that delays were to be “expected in the coming months”. No indication was given either as to the impact of delays on programs where specific timeframes are targeted, such as 10 day processing in certain cases.

ESDC has indicated that it is taking steps to improve processing times. However, in cases where LMIAs cannot be avoided, employers (and employees) must simply recognize this reality at this time, unless and until the situation improves, and until further information is provided by ESDC.

The information in this article is for general purposes only, and not intended as legal advice for any particular situation.

In 2014 Immigration, Refugees and Citizenship Canada (IRCC) announced that, subject to certain exceptions, specialized knowledge Intra-Company Transferees were required to be paid at the prevailing wage for their occupation. (This provision does not apply to ICTs based on managerial level capacity.)

Prevailing wage is determined based on the National Occupational Classification (NOC) code associated with an occupation, and based further on the geographical area where the person will be working (the wage for a specific scenario can be determined at https://www.jobbank.gc.ca/explorecareers?select=ec-wages).

It should be noted that though Canada allows for ICTs, there are actually multiple legal sources for this work permit category. ICTs can be based on treaty provisions, or the general regulations under the Immigration and Refugee Protection Act. Though the sources in large part provide similar requirements, they are indeed distinct sources, and there can be some technical differences (and newer treaties have new concepts like ‘graduate trainees’, not previously available).

The primary exception to the prevailing wage requirement is that where an ICT is based on the terms of a treaty that Canada has entered into with an other country or countries, the terms of that treaty will be paramount in the event of a conflict with general regulatory requirements. As such, for instance, ICT applicants under NAFTA are exempt from this prevailing wage requirement, since NAFTA does not call for this requirement.  (One important item to note is that this treaty exception does not apply to GATS, the General Agreement on Trade in Services, essentially because it is not technically a treaty, but more of a protocol to which countries may or may not be party.)

IRCC has now clarified that the treaty exception noted above applies to ICTs under the Canada-European Union Comprehensive Economic and Trade Agreement (CETA). That is, European Union-based ICTs to Canada relying on CETA provisions are indeed exempt from the prevailing wage requirement. Until now, this was not fully clear due to some of the verbiage in the treaty, but this ambiguity now appears to have been resolved, and resolved in favour of not enforcing the need for prevailing wage.

Though this is an important clarification for people seeking to utilize CETA ICT provisions, it should still be recalled that in all cases, an officer still has the right to determine the credibility of a case, and a salary that is unduly low may still cause issues in an ICT scenario. It may seem unusual, for instance, for a senior computer analyst in a company to be earning minimum wage. Yet again, the prevailing wage exemption for CETA ICTs is an important technical piece of information, but the bona fides of an application must still be considered in its totality.

The information in this article is for general purposes only, and not intended as legal advice for any particular situation.