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In the past year, there have been a number of significant
developments that affect processing of temporary foreign workers
under the Intra-company Transfer (ICT) category. These changes
effect applications made pursuant to both the North American
Free Trade Agreement and the global regulations of the
Immigration and Refugee Protection Act. They include a new
policy guideline for assessment of the specialized knowledge
subcategory and secondly, a new progressive scheme which allows in
certain circumstances for a "recapturing" of work permit
eligibility time for ICTs of both specialized knowledge workers and
senior executives/managers.
Specialized Knowledge Policy Clarification
Under these new guidelines when assessing an application for a
work permit as a specialized knowledge worker, there are now a
number of factors that will be taken into consideration to
determine if the application supports the claim of specialized
knowledge. They include an assessment of such factors as, whether a
diploma or degree is required for the position sought, and if the
work experience with the foreign company/the respective industry
supports the claim of specialized knowledge.
The position in Canada must be of a level that is similar to the
applicant's home position or higher, unless the applicant is
able to satisfy the visa officer that an exceptional situation
exists. In conjunction with the foreign worker's knowledge,
education and experience, the National Occupational Classification
will also be used to determine the appropriate wage.
There is now also an examination of the worker's prospective
salary in Canada and whether it is realistic in terms of Canadian
wage levels for the occupation concerned. Salaries of specialized
knowledge workers in Canada should normally approximate the average
wage for the stated occupation in the specified geographical
location while working in Canada.
Finally, the category now requires that the processing
immigration officer also consider if any previous training supports
the claim to specialized knowledge and if the supporting
documentation provided by the foreign worker supports the claim of
specialized knowledge.
Recaptured Time
Normally, the duration of the work permit is used to calculate
the maximum five or seven year time limit that an ICT is allowed to
work in Canada, regardless of how much time they physically reside
in Canada during the duration of their permit. This policy was
particularly problematic for those workers who did not reside in
Canada for great periods of time during the validity of their
permits, but rather travelled into Canada for short trips for
work-related purposes.
Now documented time spent outside Canada can be recaptured to
allow the ICT five or seven full years of physical presence in
Canada. This now means that if a worker has spent a portion of the
validity of their work permit outside Canada they may be able to
recapture that time and seek additional time under this category
beyond the five or seven years.
For example, if a specialized knowledge worker has had
successive work permits valid for the past five years, but has
spent in the last year six of those months working outside Canada,
they may be able to seek an additional six months of validity
without having to seek a new category or a labour market opinion
from Service Canada.
Summary
Given the greater scrutiny that applicants applying under the
specialized knowledge category will experience going forward,
employers will be best advised to take greater time and seek expert
advice on whether each worker meets the legal threshold for
eligibility in the category, and given the new generous policy of
recaptured time, employers and current ICT work permit holders
should examine their individual cases.
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.
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