IRCC Releases Eligibility Updates For Intra-Company Transfers

At a Glance

Immigration, Citizenship and Refugees Canada (IRCC) has updated its Program Delivery Updates, updating guidance on how IRCC staff should analyze immigration applications.
Key updates include stricter requirements for employers and foreign nationals under the International Mobility Program's Intra-Company Transfer (ICT) category, among others.
The guidance and stricter eligibility criteria for foreign nationals' work experience, knowledge and role in Canada reinforce that ICTs should not be used to transfer an enterprise's general workforce to affiliated entities in Canada.
These program updates align with the government's broader goal to scale back temporary resident programs, and they follow other recent restrictions.

The situation

Immigration, Citizenship and Refugees Canada (IRCC) has updated its Program Delivery Updates (PDUs), updating guidance on how IRCC staff should analyze immigration applications.

A closer look

Key updates include the following stricter requirements for employers and foreign nationals under the International Mobility Program's Intra-Company Transfer (ICT) category:

Guidance/Change	Impact
Eligibility requirements for companies: The updated guidance now requires officers to ensure that the foreign enterprise applying for an ICT qualifies as an existing multinational corporation (MNC). This means that the enterprise must have revenue-generating operations in at least two countries, before establishing an enterprise in Canada. Furthermore, the Canadian and foreign enterprises must all be legal entities and must have a parent, branch, subsidiary, or affiliate business relationship between them. The qualifying relationship will be determined by ownership and control and does not include business relationships between suppliers or clients; those based on contracts, licensing arrangements or franchise agreements; or ownership of a small amount of stock, membership in board of directors or similar arrangements. The reference to a MNC and the qualifying relationship are new definitions. Previously, companies were only required to have a foreign enterprise that was an affiliate, parent, branch or subsidiary of the Canadian enterprise.	As a result, according to IRCC, the enterprise outside of Canada cannot become an MNC by using the ICT work permit category to establish their first foreign enterprise in Canada. Under the tightened qualifying relationship definition, a Canadian enterprise that exists in name only and does not generate sustainable revenue and profit, or other benefits from business activities such as selling products or providing a service and/or has no employees or commercial premises, would not qualify for sponsoring ICTs. Furthermore, officers will scrutinize whether the foreign national is effectively taking a position in a Canadian branch and whether this category is used for service personnel whom the company is seeking to send into a client site in Canada on a need basis, which are unallowed activities via an ICT application. Under the updated guidance, foreign nationals seeking to enter Canada to establish a new business but are transferring from an enterprise outside of Canada that is not a MNC, are not eligible to apply under the ICT category. They may instead seek to apply under the Business owner – temporary purpose (C11)category instead.
Eligibility requirements for foreign nationals: The updated guidance sets forth stricter interpretation of whether applicants hold the necessary specialized knowledge to qualify under the program. Under the updated guidance, applicants should have at least two years of experience with the foreign enterprise. If less (but more than the one-year requirement), they should demonstrate studies in the relevant field or years of experience in the industry and would be subject to higher scrutiny. Previously, one year of employment with the foreign enterprise was typically sufficient to demonstrate specialized knowledge. The guidelines also clarify that part-time work cannot be used to meet the one year of full-time employment requirement with the foreign enterprise. Previously, part-time work equivalent to one year was allowed. Furthermore, foreign nationals are now required to demonstrate that their position in the foreign enterprise will remain available to them for their return after their period of employment in Canada, and that their work will generate significant economic, social or cultural benefits, or opportunities for Canadian citizens or permanent residents during their employment in Canada. These more restrictive requirements for applicants were not previously required.	Overall, the guidance and stricter eligibility criteria for foreign nationals' experience, knowledge and role in Canada reinforce that ICTs should not be used to transfer an enterprise's general workforce to affiliated entities in Canada. Employers will need to carefully consider which foreign nationals they seek to send to Canada, and the intended purpose of the transfer.

Guidance/Change

Impact

Eligibility requirements for companies:

The updated guidance now requires officers to ensure that the foreign enterprise applying for an ICT qualifies as an existing multinational corporation (MNC). This means that the enterprise must have revenue-generating operations in at least two countries, before establishing an enterprise in Canada.
Furthermore, the Canadian and foreign enterprises must all be legal entities and must have a parent, branch, subsidiary, or affiliate business relationship between them.
The qualifying relationship will be determined by ownership and control and does not include business relationships between suppliers or clients; those based on contracts, licensing arrangements or franchise agreements; or ownership of a small amount of stock, membership in board of directors or similar arrangements.
The reference to a MNC and the qualifying relationship are new definitions. Previously, companies were only required to have a foreign enterprise that was an affiliate, parent, branch or subsidiary of the Canadian enterprise.

As a result, according to IRCC, the enterprise outside of Canada cannot become an MNC by using the ICT work permit category to establish their first foreign enterprise in Canada.
Under the tightened qualifying relationship definition, a Canadian enterprise that exists in name only and does not generate sustainable revenue and profit, or other benefits from business activities such as selling products or providing a service and/or has no employees or commercial premises, would not qualify for sponsoring ICTs.
Furthermore, officers will scrutinize whether the foreign national is effectively taking a position in a Canadian branch and whether this category is used for service personnel whom the company is seeking to send into a client site in Canada on a need basis, which are unallowed activities via an ICT application.
Under the updated guidance, foreign nationals seeking to enter Canada to establish a new business but are transferring from an enterprise outside of Canada that is not a MNC, are not eligible to apply under the ICT category. They may instead seek to apply under the Business owner – temporary purpose (C11)category instead.

Eligibility requirements for foreign nationals:

The updated guidance sets forth stricter interpretation of whether applicants hold the necessary specialized knowledge to qualify under the program. Under the updated guidance, applicants should have at least two years of experience with the foreign enterprise. If less (but more than the one-year requirement), they should demonstrate studies in the relevant field or years of experience in the industry and would be subject to higher scrutiny. Previously, one year of employment with the foreign enterprise was typically sufficient to demonstrate specialized knowledge.
The guidelines also clarify that part-time work cannot be used to meet the one year of full-time employment requirement with the foreign enterprise. Previously, part-time work equivalent to one year was allowed.
Furthermore, foreign nationals are now required to demonstrate that their position in the foreign enterprise will remain available to them for their return after their period of employment in Canada, and that their work will generate significant economic, social or cultural benefits, or opportunities for Canadian citizens or permanent residents during their employment in Canada. These more restrictive requirements for applicants were not previously required.

Overall, the guidance and stricter eligibility criteria for foreign nationals' experience, knowledge and role in Canada reinforce that ICTs should not be used to transfer an enterprise's general workforce to affiliated entities in Canada.
Employers will need to carefully consider which foreign nationals they seek to send to Canada, and the intended purpose of the transfer.

Additional updates to other particularities of the ICT program include, among others:

Stricter requirements as to the location of employment in Canada (i.e., businesses operating from non-commercial/residential locations, virtual businesses, or work that can be carried out from outside Canada would not qualify for the ICT program).
Stricter requirements to change to a different ICT category when applying for a new work permit.
Clarification of the maximum duration of stay for foreign nationals changing from one ICT category to another (i.e., from specialized knowledge to the senior manager category, and vice versa).

IRCC has also updated staff guidance related to Free Trade Agreements (FTA) under the International Mobility Program. Notably, the guidance for assessing ICTs now applies to ICTs within the FTA application categories, with certain exceptions.

Background

International Mobility Program. Under the International Mobility Program, employers can use Intra-Company Transfers to obtain work permits for foreign nationals, without needing to undertake a Labour Market Impact Assessment.
PDUs. PDUs are guidelines on how IRCC staff should analyze immigration applications. They are posted on IRCC's website as a courtesy to stakeholders.
Reason for updates. These program updates relating to ICTs align with the government's broader goal to scale back temporary resident programs. They follow the recent implementation of restrictions under the Low-Wage stream of the Temporary Worker Program, restrictions for students and spouses of temporary residents and restrictions on applying for work permits within Canada, among other recent restrictive government measures.

Looking ahead

The upcoming Immigration Levels Plan to be released in November 2024, which sets out immigration targets for the upcoming three years, is expected to include reductions in the number of temporary residents in Canada. Additional policy changes stemming from these plans should be expected.

We will continue to report on related developments.

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