The Intra-Company Transferee (“ICT”) Program allows international companies to transfer their employees to their parent company, branch, subsidiary or affiliate in Canada. Employees coming to Canada through the ICT are required to get a work permit, which can be achieved through exemption from Labour Market Impact Assessment (“LMIA”) requirements under the exemption code C-12. LMIA exemption makes the ICT process quicker and less complex compared with the LMIA work permit. The purpose behind the ICT Program is to temporarily transfer qualified employees to Canada for the purpose of improving management effectiveness, expanding Canadian exports, and enhancing competitiveness in overseas markets.
The following requirements must be met in order for an intra-company transferee to apply for work permit under the ICT category:
The foreign workers must be currently employed by a multi-national company and seeking to work in an enterprise in Canada that is a parent company, subsidiary, branch or an affiliate of that multi-national foreign company. They will be undertaking employment at a legitimate and continuing establishment of the foreign company (where 18-24 months can be used as a reasonable minimum guideline). This requirement does not apply to start-up companies.
The ICT also requires that foreign workers have been employed continuously by the foreign company in a full-time position for at least 1 year in the last 3 years immediately preceding the date of initial application. It should be noted that full-time work experience with the foreign company is not always a must, because the Immigration, Refugees and Citizenship Canada officer may consider other certain factors before refusing the application solely on this basis.
2. ICT Job Categories
The foreign workers must be transferred to a position in an executive, senior managerial, or specialized knowledge capacity at a permanent and continuing establishment of the foreign company in Canada for a temporary period.
a. Executives and Senior Managers
Executive and managerial capacities mean that the holders of such positions plan, organize, direct, or control the activities of a business, or a division of a business, either independently or through middle managers. They are frequently responsible for the implementation of the policies of a business.
Executives primarily engage in the following activities:
- directs the management of the organization or a major component or function of the organization;
- establishes the goals and policies of the organization, component, or function;
- exercises wide latitude in discretionary decision-making; and
- receives only general supervision or direction from higher level executives, the board of directors, or stockholders of the organization.
Managers primarily engage in the following activities:
- manages the organization, a department, subdivision, function, or component of the organization;
- supervises and controls the work of:
- other managers or supervisors;
- professional employees, or
- manages an essential function within the organization, or a department or subdivision of the organization.
- has the authority to hire and fire, or recommend these and other personnel actions, such as promotion and leave authorization; if no other employee is directly supervised, functions at a senior level within the organization hierarchy or with respect to the function managed; and,
- exercises discretion over the day-to-day operations of the activity or function for which the employee has the authority.
b. Functional Managers
Functional managers in the ICT context, manage an essential function in the company, but do not necessarily manage staff. Essential function generally means a function that is indispensable or important to achieving the organization’s goals. A functional manager must operate at a senior level within the organization or within the function managed, and have discretion over the day-to-day operations of the function. The following factors may support functional manager status:
- providing coordination and guidance to other managers;
- having responsibility over assets or sales with a large dollar value;
- directing the work of subcontracted firms.
c. Specialized Knowledge Workers
In order for an applicant to be eligible for specialized knowledge worker exemption, he/she must hold (i) knowledge at an advanced level of expertise and (ii) proprietary knowledge of the company’s product, service, research, equipment, techniques or management. Such elements may help officers to better guide their decision while assessing whether a foreign worker holds specialized knowledge: occupation (NOC code), education, duration of experience, training, duration of the job offer, prevailing wage level.
IRCC considers specialized knowledge to be knowledge that is unique and uncommon; it will by definition be held by only a small number or small percentage of employees of a given firm. Specialized Knowledge workers must therefore demonstrate that they are key personnel, not simply highly skilled. The onus is on the applicants to provide evidence that they meet this standard. Documentary evidence may include, but is not limited to, the following:
- a resume
- reference letters
- letter of support from the company
- job descriptions that outlines the level of training acquired
- years of experience in the field
- degrees or certifications obtained in the field
- list of publications and awards (where applicable)
- a detailed description of the work to be performed in Canada.
3. Qualifying Relationship
Between the Companies
The foreign workers must be transferring to an enterprise in Canada that has a qualifying relationship with the foreign enterprise in which they are currently employed. Having said that, the Canadian and foreign enterprises must be legal entities that have a parent, subsidiary, branch or affiliate business relationship. Both the Canadian and foreign companies must be, or will be doing business.
Between the Employer and the Foreign Worker
In order for a foreign worker to be granted a work permit under the ICT Program, an employer-employee relationship with the Canadian branch of the company to which he/she is being transferred must exist. The right of the employer to order and control the employee in the performance of their work is an essential element in determining the said qualifying relationship. While full-time employment by the Canadian branch is anticipated, there is no requirement that the foreign national perform full-time service in Canada. An executive, for example, could divide normal working hours between offices in Canada and the U.S. There is no requirement that the foreign national be paid from the Canadian entity; however, this is usually the case.
Duration of Work Permit
In general, the initial work permits issued under the ICT program are for a one year period. This is usually the case with start-up companies. On the other hand, these work permits can be renewed up to a maximum of 7 years for executives or managers and 5 years for specialized knowledge workers, provided that
(i) the Canadian and foreign companies still have a qualifying relationship;
(ii) the new office has engaged in the continuous provision of goods or services for the past year;
(iii) the new office has been staffed.
Upon reaching the maximum work permit duration (7 years for executives and managers, and 5 years for specialized knowledge workers), the intra-company transferees must complete 1 year of full-time employment in the company outside Canada if they wish to re-apply as an intra-company transferee.
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