Canada: CIC Issues Expanded Guidance On C12 Specialized Knowledge Intra-Company Transferees

Last Updated: June 18 2014
Article by Henry Chang

On June 9, 2014, Citizenship and Immigration Canada ("CIC") issued Operational Bulletin 575 ("OB 575"), which provides expanded guidance for intra-company transferee ("ICT") work permits issued to specialized knowledge workers under the general ICT (C12) category. This guidance, which is effective immediately, imposes a more rigorous definition of "specialized knowledge" as well as a mandatory wage requirement for some ICTs. However, OB 575 makes clear that this expanded guidance (at least with respect to the wage requirement) does not apply to specialized knowledge ICTs entering Canada pursuant to the North American Free Trade Agreement (NAFTA) or to any future or current Free Trade Agreements ("FTAs").

Stricter Interpretation of Specialized Knowledge

OB 575 justifies its more restrictive interpretation of specialized knowledge by referring to the General Agreement on Trade in Services ("GATS"), which currently provides for a stricter definition of specialized knowledge than the general C12 category. According to the GATS, a specialized knowledge worker must possess "knowledge at an advanced level of expertise" and "proprietary knowledge of the company's product, service, research, equipment, techniques or management."

In other words, an applicant is required to demonstrate, on a balance of probabilities, a high degree of both proprietary knowledge and advanced expertise. Proprietary knowledge alone, or advanced expertise alone, does not qualify the applicant under this exemption. This is a much higher standard than has traditionally been applied to the general ICT category (C12) or ICTs under the existing FTAs.

The following definitions now apply to the C12 category:

  • Proprietary knowledge is company-specific expertise related to a company's product or services. It implies that the company has not divulged specifications that would allow other companies to duplicate the product or service.
  • Advanced proprietary knowledge would require an applicant to demonstrate: (i) uncommon knowledge of the host firm's products or services and its application in international markets; or (ii) an advanced level of expertise or knowledge of the enterprise's processes and procedures such as its production, research, equipment, techniques or management.
  • An advanced level of expertise is also required, which would require specialized knowledge gained through significant1 and recent2 experience with the organisation and used by the individual to contribute significantly to the employer's productivity.

In assessing such expertise or knowledge, immigration officers are also instructed to consider:

  • Abilities that are unusual and different from those generally found in a particular industry and that cannot be easily transferred to another individual in the short-term;
  • The knowledge or expertise must be highly unusual both within the industry and within the host firm;
  • It must be of a nature such that the applicant's proprietary knowledge is critical to the business of the Canadian branch and a significant disruption of business would occur without the applicant's expertise;
  • The applicant's proprietary knowledge of a particular business process or methods of operation must be unusual, not widespread across the organization, and not likely to be available in the Canadian labour market. For example, skill in implementing an off-the-shelf product would not, by itself, meet the standard of specialized knowledge; unless, for example, the product is new or being highly customized to the point of being a "new" product. In other words, an ICT applicant is more likely to have truly specialized knowledge if they directly contribute to the (re)development of a product, rather than to the implementation of a pre-existing product.

CIC 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.

These definitions (in particular the requirement of proprietary knowledge) are a cause for some concern. They closely resemble the overly restrictive definitions that were once applied by the United States Government when adjudicating the U.S. version of the specialized knowledge ICT category (the L-1B). However, the United States abandoned these restrictive definitions years ago and adopted a more reasonable interpretation that more closely resembles the threshold that applied to C12 ICT cases immediately prior to OB 575.

OB 575 also requires immigration officers to consider the following about the nature of the employment:

  • ICT specialized knowledge workers must be clearly employed by, and under the direct and continuous supervision of, the host company;
  • Given the nature of specialized knowledge, the worker will not normally require training at the host company related to the area of expertise; and
  • As the specialized knowledge will not be readily available within the Canadian labour market, and cannot readily be transferred to another individual, a specialized knowledge worker must not receive specialized training by other employees such that this would lead to the displacement of Canadian workers.

This appears to be an attempt to restrict the use of the general ICT category (C12) by third party contractors who hire specialized knowledge workers for the sole purpose of placing them at their client sites, where they will essentially be de facto employees of those clients. This is admittedly consistent with what the United States has been doing in recent years.

OB 575 makes clear that certain bilateral agreements contain variations of the above definition of "specialized knowledge" which should be respected, while ensuring applicants in fact possess specialized knowledge. Immigration officers assessing applicants from Colombia and Peru, in particular, are advised to consult the Temporary Foreign Worker Manual for additional detail on the definitions of "specialized knowledge" captured in Canada's free trade agreements with those countries. Hopefully, the restrictive interpretations contained in OB 575 will not inadvertently result in stricter adjudications of ICT specialized knowledge cases that are based on the NAFTA or other FTAs.

Mandatory Wage Floor

According to OB 575, if a worker possesses the high standard of specialized knowledge that is uncommon in a particular industry as described above, then the salary or wage should be consistent with such a specialist. Such a specialist would typically receive an above average salary; therefore, a wage floor set at prevailing wage levels will establish a baseline for the assessment of an application.

OB 575 states that Immigration officers will determine the Canadian prevailing wage for the specific occupation and region of work by using Employment and Skills Development Canada (ESDC) "Working in Canada" website's tool to determine prevailing Canadian wage. It also clarifies that non-cash per diems (for example, hotel, transportation paid for by the employer) are not to be included in the calculation of the overall salary or wage. Only allowances compensated in monetary form and paid directly to the employee are to be included.

This expanded guidance is not dramatically different from the restrictive guidance that CIC had already provided in Operational Bulletin 316 ("OB 316"), which it published on July 4, 2011. However, the now-expired OB 316 stated at the time that salary was only one of a series of factors, which had to be taken into consideration as a whole in order to render a sound decision; immigration Officers were reminded that applications should not be refused on the basis of salary alone. OB 575 now appears to make the relevant prevailing wage an absolute requirement, which means that C12 specialized knowledge applications may be denied solely because the proposed wage falls below the prevailing wage.

OB 575 clarifies that the above policy with respect to a mandatory wage does not apply to specialized knowledge ICTs entering Canada pursuant to the NAFTA or to any future or current FTAs. Nevertheless, wage remains an important indicator of specialized knowledge in such cases and should be taken into account as an important factor in an officer's overall assessment. In other words, although no prevailing wage requirement applies to specialized knowledge ICTs based on the NAFTA or another FTA, a proposed wage that is too far below the prevailing wage may cause an officer to question whether the proposed position really does involve specialized knowledge.


As mentioned above, the expanded guidance contained in OB 575 should not (at least in theory) affect the adjudication of ICT specialized knowledge applications that are based on the NAFTA or Canada's other FTAs. However, citizens of non-FTA countries can expect increased difficulties when applying for ICT work permits as specialized knowledge workers, under the general ICT (C12) category.


1 "Significant" is not defined as it is not always a meaningful indicator; however, as per the chapter FW 1, section 5.31, it states that "the longer the experience, the more likely the knowledge is indeed 'specialized.'"

2 "Recent" is defined as within the last five years.

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.

To print this article, all you need is to be registered on

Click to Login as an existing user or Register so you can print this article.

Henry Chang
Similar Articles
Relevancy Powered by MondaqAI
Karas & Associates
In association with
Related Topics
Similar Articles
Relevancy Powered by MondaqAI
Karas & Associates
Related Articles
Related Video
Up-coming Events Search
Font Size:
Mondaq on Twitter
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
Email Address
Company Name
Confirm Password
Mondaq Topics -- Select your Interests
 Law Performance
 Law Practice
 Media & IT
 Real Estate
 Wealth Mgt
Asia Pacific
European Union
Latin America
Middle East
United States
Worldwide Updates
Registration (you must scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of

To Use you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.


The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.


Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions