On June 9, 2014, Immigration Canada published expanded guidelines for officers assessing work permit applications under the Specialized Knowledge intra-company transferee (ICT) work permit category.
These changes are set out in Operational Bulletin 575.
The changes appear to be aimed at tightening up the specialized knowledge category. Work permit applications for Specialized Knowledge ICT applications will be assessed under these new, tougher standards.
As well, a mandatory wage floor has been introduced for some types of Specialized Knowledge ICTs.
Revised "Specialized Knowledge" Standard
Specialized Knowledge ICT applicants must now show, on a balance of probabilities, a high degree of both proprietary knowledge and advanced expertise. This appears to be a stricter standard than was the case prior to the new guidelines.
Proprietary knowledge is defined as "company-specific expertise related to a company's product or services" and "implies that the company has not divulged specifications that would allow other companies to duplicate the product or service".
An applicant needs to demonstrate advanced proprietary knowledge which is "uncommon knowledge of the company's products or services and its application in international markets"; or "an advanced level of expertise of the company's processes and procedures such as its production, research, equipment, techniques or management".
To demonstrate an advanced level of expertise, the applicant will need to show specialized knowledge gained through significant and recent experience within the company, and which has been used to contribute significantly to the company's productivity. "Recent" is defined as within the last five years.
The new guidelines also provide instructions to officers on how to assess expertise and knowledge. The following four factors are set out:
- 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.
The guidelines also confirm that the transferee "must be clearly employed by, and under the direct and continuous supervision of, the host company". There has always been an element of this requirement for intra-company transferee work permits in the Foreign Worker Manual, but this appears to be an attempt to place more emphasis on this factor.
The guidelines also state that Specialized Knowledge ICT applicants will not usually require training from the Canadian company relating to the area of expertise. This makes sense as the need for such training would suggest that the transferee is not really that unique or specialized.
Overall, these changes raise the bar in terms of the Specialized Knowledge ICT category. Employers that rely on this category to temporarily transfer specialists to Canada from related companies must carefully review the guidelines to ensure that the prospective applicant meets the definition. Operational Bulletin 575 states that only a small number or percentage of employees in a company would have the required level of specialized knowledge. Generally, applicants will need to show that they are key personnel or specialists, not simply highly skilled in their field.
Employers in Canada who currently have transferees with work permits under this category will need to review things carefully before applying for a renewal, as the new, tougher test will be applied. Some incumbents may not be able to meet the new guidelines.
Mandatory Wage Floor
The new mandatory wage floor does not apply to ICT applicants who are applying under a free trade agreement like NAFTA.
Officers reviewing a Specialized Knowledge ICT will now assess whether or not the candidate will be paid at least the Canadian prevailing wage for the specific occupation and location of work. This is similar to the prevailing wage analysis that traditionally was done by ESDC on labour market opinion applications (formerly called LMOs, now called LMIAs). Officers will refer to this tool to obtain the prevailing wage: Tool to Determine Prevailing Wage.
If the mandatory wage floor is not met, the application will be refused.
Therefore, employers seeking specialized knowledge ICTs under IRPA (i.e. outside of a free trade agreement) will need to assess the wage being paid and will need to ensure that the applicant will be paid at least the prevailing wage. We also recommend that wages be closely reviewed even where the ICT application is being made under a Free Trade Agreement, as the wage level may still be a factor that officers consider when assessing whether a position is at a high enough level to be considered under the specialized knowledge category.
This assessment must be done well in advance and we also recommend as a proactive measure that the submission materials include reference to the NOC that the employer says applies to the candidate's position in Canada. Confirmation of wages will also need to be included in the application materials so that an officer can make the mandatory wage floor assessment.
Canadian employers seeking work permits under the Specialized Knowledge ICT category need to be aware of the new guidelines. There is a now a higher threshold required to meet the definition of "specialized knowledge". Does the prospective transferee and the position meet the definition under Operational Bulletin 575?
Employers must also ensure that the mandatory wage requirement is met for Specialized Knowledge ICT applications made under the provisions of IRPA (i.e. not under a free trade agreement).
Gowlings' Immigration group can assist with the assessment of specific scenarios, as well as assisting with the preparation of Specialized Knowledge ICT work permit applications.
Please refer to Operational Bulletin 575 in order to review the full details on the new guidelines: Operational Bulletin 575. Canada's Foreign Worker Manual also contains further guidelines for intra-company work permits: Foreign Worker Manual. ICTs under Free Trade Agreements may also have special rules relating to the Specialized Knowledge ICT work permit category depending on the text of the FTA.
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.