Intra‐company transferee work permits are appropriate when a foreign corporation wants to transfer an employee to a Canadian corporation that is related to the foreign corporation.
Requirements of Employee
To obtain the Work Permit, the employee seeking to be transferred to Canada must have worked as an employee of the foreign company for 1 continuous year, full‐time, within the 3 years immediately preceding the date of application.
Types of Work Permits
Intra‐company Transferee Work Permits can be obtained by a qualified employee in the capacity of (1) Executive/Managerial and (2) Specialized Knowledge.
Senior Manager/Executive
Decision‐making authority, discretionary power and supervision of some staff are key requirements of the executive category. To be eligible for this category, the employee must have care, direction and control over one or more major components of the Canadian company, including the supervision of managerial staff. This employee is responsible for planning, organizing, directing or controlling the business or a division. This category is not applicable to middle managers. This type of permit can be obtained for a total of 7 years. After this 7 year period, the employee has to work out of Canada for 1 year before the employee can again apply for a permit to work in Canada.
Specialized Knowledge
For an employee to qualify under this category, the knowledge that the employee possesses must be a kind that cannot be gleaned simply from a day's worth of training or from generic schooling, but, rather, is specialized knowledge at an advanced level. In addition, knowledge of an employer's unique company product or processes and procedures can give an employee the specialized knowledge necessary to successfully qualify for this category. This type of work permit can be obtained for a total of 5 years. After this 5 year period, the employee has to work out of Canada for 1 year before the employee can again apply for a permit to work in Canada.
Process
Intra‐company transferee Work Permits can, generally, be immediately applied for at border crossings or the first port of entry into Canada. Applications involve filling out the required forms and including a carefully drafted support letter with documentation that supports the application. However, if the applicant is required by Immigration rules to have a medical examination or obtain a Visa to enter Canada, the application is made at a Canadian embassy or consulate outside of Canada. Citizenship and Immigration Canada ("CIC") charges a processing fee (currently $150.00 (CAD) (credit cards accepted) for each Work Permit.
Corporate Requirements
The Canadian company and the foreign company must have a qualifying relationship in order for an employee to be eligible for an Intra‐company Transferee work permit. Generally speaking, there must be common control between the two companies. There are three major types of qualifying corporate relationships, although each category has numerous permutations and combinations:
- Parent or Subsidiary;
- Affiliate (including Joint Venture); or
- Branch.
Evidence of the qualifying relationship must be included in the application and explained in the support letter.
New Developments
- Applications for work permits under the "specialized knowledge" category are now subject to increased scrutiny by CIC and relevant education, knowledge, experience and training are reviewed when determining if a worker has the requisite specialized knowledge.
- In determining whether a worker has reached the maximum duration allowed for the work permit, now only the actual time spent in Canada (rather than the dates of the work permit) counts toward the maximum. This can have the practical effect of extending the maximum duration of the work permit.
Miscellaneous
Spouses and children can accompany an employee with a Work Permit to live in Canada and will be issued Visitor Records for the duration of the Work Permit. Depending on the type of position the employee holds, the spouse may be eligible for an open Work Permit to work in Canada as well. The foregoing is a brief introduction to the Intra‐company Transferee Work Permit category. Please feel free to contact me to discuss your specific situation further.
About Fraser Milner Casgrain LLP (FMC)
FMC is one of Canada's leading business and litigation law firms with more than 500 lawyers in six full-service offices located in the country's key business centres. We focus on providing outstanding service and value to our clients, and we strive to excel as a workplace of choice for our people. Regardless of where you choose to do business in Canada, our strong team of professionals possess knowledge and expertise on regional, national and cross-border matters. FMC's well-earned reputation for consistently delivering the highest quality legal services and counsel to our clients is complemented by an ongoing commitment to diversity and inclusion to broaden our insight and perspective on our clients' needs. Visit: www.fmc-law.com
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
