Questions?

We're happy to answer your questions, over the phone (+44 20 7993 6860), in person, or by email.

Please use the form below and we'll get back to you within 24 hours.

(Just so we know you're a real person)

CANADA – Clarifications for Intra Company Transferee Specialised Knowledge Criteria

Citizenship and Immigration Canada (CIC) has released a new Operations Bulletin (number 316) for its immigration officers (at Canada’s diplomatic posts, ports of entry and inside Canada) which specifically relates to criteria for assessing specialised knowledge under the intra company transferee (ICT) route, and in particular, the role of salary/wages in assessing these applications. The key points follow.

Background

The ICT route is a popular corporate immigration route into Canada, particularly since the software development workers programme was cancelled (apart from in British Columbia and Quebec) back on 30 September 2010. One of the advantages of the specialised worker ICT route is that it does not require a labour market opinion (LMO) to be issued – i.e. there is no need to provide evidence to the Canadian immigration authorities that there are no available Canadians to fill the position. The increase in use of the ICT programme has led to greater scrutiny of applications; hence the publication of clear guidelines in the form of this bulletin.

Key Factors for Assessment

The Bulletin lists the following key factors for assessment of specialised knowledge ICT cases:

  • Education– is a diploma or degree required for the position sought?
  • Knowledge – is it relatively unique within the company and industry in that it is not commonly held?
  • Experience – does the experience with the foreign company/the respective industry support the claim of specialized knowledge?
  • Salary – is the salary realistic in terms of Canadian wage levels for the occupation concerned?
  • Relevant training – does any previous training support the claim to specialized knowledge?
  • Supporting documentation – do the resume, reference letters, etc. support the claim?It is normally not sufficient for a worker to simply have knowledge of the proprietary tools used or developed by the employer.

A specialized knowledge worker position would normally possess the following characteristics:

  • Position requires knowledge that is uncommon (i.e., beyond that generally found in a particular industry and within the company);
  • Position requires knowledge that has been gained through extensive experience and is difficult to acquire in a short period of time;
  • It would be difficult to train another worker to assume such duties;
  • The required knowledge is complex in that it cannot be easily transferred;
  • A person possessing such knowledge would be in a position that is critical to the well-being or productivity of the Canadian employer.

Occupation

The occupation in Canada should be similar to or higher than the applicant’s position in the home country, and officers have been instructed to use Canada’s National Occupational Classification (NOC) system to evaluate the categorization of the job. In conjunction with the foreign worker’s knowledge, education and experience, the NOC will also be used to determine the appropriate wage.

Salary/Wages

  • The Bulletin makes it clear that salary for specialised worker ICT applicants must be in line with what a Canadian national would expect to receive for the same occupation in the same geographical location in Canada. Further information can be found at the Human Resources and Skills Development Canada website here.
  • Further, the bulletin makes it clear that non-cash per diem allowances (e.g. paying for accommodation or transportation) may not be included in salary calculations. However, allowances compensated in monetary form and paid directly to the employee may be included.
  • Finally, the bulletin emphasises that salary is one of a series of factors which must be taken into consideration as a whole in order to render a sound decision. Officers are reminded that applications should not be refused on the basis of salary alone.

Action Items

  • For any upcoming moves to Canada under the ICT specialised knowledge route, note the specific criteria for qualifying as having “specialised knowledge” noted above – in particular, that having knowledge of a proprietary tool may not be sufficient
  • Note the salary requirements listed above, in particular the stipulation that non-cash allowances may not be counted towards salary
  • It may be advisable to consider the Labour Market Opinion (LMO) process for some applications. This could apply particularly where multiple foreign workers are needed in Canada in various occupations or roles, as in this case the Labour Market Opinion Bulk Order process can be used, after which individual LMOs can be obtained in as little as 5-7 days. This offers greater predictability, as where the LMO has been obtained, work permit approvals are rarely denied.

This news alert was prepared using information provided by Greenberg Turner.

DISCLAIMER: The information contained in this immigration alert has been abridged from laws, court decisions, and administrative rulings and should not be construed or relied upon as legal advice. If you have specific questions regarding the applicability of this information, please contact Peregrine © 2017 Peregrine Immigration Management Ltd.