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backGLOBALtalk December, 2011

Important New Guidance for Intracompany Transfers to Canada

We are pleased to provide this update in relation to Operational Bulletin 316 ("The Bulletin"), issued by Citizenship and Immigration Canada ("CIC") on July 4th, 2011, relating to the salary and specialization of intracompany transfers.

The Bulletin was written in response to the increasing number of Intracompany Transfer applications based on the specialized knowledge category. This increase was due, in large part, to the elimination of the national exemption of Labour Market Opinions ("LMOs") for software development workers, otherwise known as the IT Workers Program, on September 30th, 2010.

The government has established six factors that will help guide officers when making a determination as to whether a particular individual has the specialized knowledge for the position requested in Canada. These factors are:

·         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?

According to the Bulletin, simply possessing proprietary knowledge of, or using proprietary tools developed by the company is not sufficient: in order to be considered a specialized knowledge worker, one must possess many, if not all, of the following characteristics (emphasis added):

·         knowledge that is uncommon (i.e., beyond that generally found in a particular industry and within the company);

·         knowledge that has been gained through extensive experience and is difficult to acquire in a short period of time;

·         difficulty 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

While salary is only one of the factors set out above, the Bulletin makes clear that employers wishing to hire foreign specialized knowledge workers must offer salaries that are "realistic" in terms of Canadian wage-levels for the occupation concerned. Ultimately, if the proposed specialized knowledge worker's salary does not approximate the average salary for the position in the location of the occupation, the application may be rejected by CIC. With respect to per diems being added to a proposed salary, it is important for employers to note that only allowances in monetary form and paid directly to the employee will be included. Items such as paid accommodation or transportation while in Canada will not be considered as forming part of the salary.

Prior to the release of this Bulletin, the issue of salary with respect to intracompany transferees was not clearly defined, as there had been little guidance provided from the government to Canadian employers. With the publication of this Bulletin, we recommend employers who anticipate having their foreign workers apply as intracompany transferees based on specialized knowledge, contact legal counsel to ensure that offers made meet the standards set out by CIC.

Source: Baker McKenzie - GAI

For more information or to contact Baker McKenzie, please click here.

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