Intra Company Transferee
This article focuses on the process for eligible candidates to secure a work permit and visa using the Intra Company Transferee ICT pathway.
Canada Immigration and Visa Services is a leading Canadian-based immigration practice and business development firm that specializes in assisting with business immigration to Canada. Our track record of success and reputation for success is built upon our expertise in helping you and your family immigrate to Canada by purchasing an existing business, by starting up an eligible business asset in Canada or by expanding your current international business operations to Canada.
Depending on the circumstances of you and your family, there are several ways to immigrate to Canada as a business owner or prospective business owner.
Intra Company Transferee Overview
The ICT Program was designed by the Government of Canada to allow foreign nationals to work in Canada without an LMIA to establish or launch the Canadian operations of an existing international company. The work permit granted for an Intra Company Transferee applicant is LMIA-exempt and falls under exemption code C-12. The program was not designed as a pathway to permanent residency but depending on the circumstances there may be a pathway for individuals and their families to immigrate permanently after being issued a work permit as an ICT. Once you receive a work permit, your spouse automatically is eligible for an open work permit, where they can work anywhere in Canada. Yourself as well as your children or dependents will be eligible for free healthcare, subsidized education and many of the other benefits Canadian enjoy.
A pathway to Permanent Residency is more common after having gained the work experience necessary to apply for the appropriate immigration stream or if other circumstances change such as: your spouse obtaining skilled work experience in Canada on an open work permit or improvement of your language skills etc.
Intra-company transferees may apply for work permits under the C-12 exemption code if the follow circumstances hold true according to Immigration Canada:
- Employment: You are currently employed (or have worked 1 year in the last 3 years) by a multi-national company (sales/operations in more than one country) and seeking entry to Canada to work in a parent, a subsidiary, a branch, or an affiliate of that company. You have been employed continuously (through payroll or by contract directly with the company), by the company that plans to transfer you outside Canada in a similar full-time position (not accumulated part-time) for at least one year in the three-year period immediately preceding the date of initial application
- Qualifying Relationship: You are transferring to an enterprise in Canada that has a qualifying relationship with the company in which you are currently employed or were employed in the last 3 years, and will be undertaking employment at a legitimate and continuing establishment of that company (where 18–24 months can be used as a reasonable minimum guideline);
- Job Position: You are being transferred to a position in an executive, senior managerial, or specialized knowledge capacity.
Important Note: Full-time experience with a foreign company is only a general guideline. If you have not had full-time work experience with the foreign company, the immigration officer may consider other factors before refusing you solely on this basis, including the following:
- the number of years of work experience with the foreign company
- the similarity of the positions (e.g., is the applicant coming to work for a short period of time versus coming from a part-time position to a full-time long-term position?)
- the extent of the part-time position (i.e., two days a week versus four days a week)
- signs that this is an abuse of the intra-company transferee provision
- are coming to Canada for a temporary period only
- comply with all immigration requirements for temporary entry
Example Pathway to Permanent Residency
Rohan is 39 years old, married with 2 children and has been working as an executive manager (VP Sales) for his brothers’ software services company in Kolkata, India for the last 9 years. His role has been to manage new accounts and client acquisition and the team of sales professionals. The company has achieved market saturation in India and broken into some key international markets in the last few years. The next plan for expansion would be to send Rohan to Canada to establish a Canadian headquarters to provide its software services to the Canadian market. His current CRS score is 374 and he is unlikely to be drawn for PR in Express Entry at this point.
The software company has established a branch entity in Canada (a corporation) and Rohan applies for a work permit requested from the Canadian branch entity. The plan is for Rohan to manage a team of sales staff in Canada over the next 3 years and grow the Canadian operations. Compliant with all the requirements and details elaborated on below, Rohan earns a 3-year work permit to work in Canada as the executive manager of the Canadian corporation. When Rohan arrives in Canada, his wife is eligible for an open work permit. She immediately finds a skilled job working as an accounting assistant.
After 1 year, Rohan will gain points for his work experience in Canada, as well as his wife’s additional Canadian work experience which will add points. It is likely that his and her English scores will improve as well. Let’s propose his CRS score is now an improved 480 and it is likely he will be drawn imminently for permanent residency.
The key to a successful pathway to permanent residency in Canada is to obtain relevant and valid work experience and to improve language scores in the process. You must first have enough base CRS points, however, to ensure that you will get drawn for PR on a reasonable timeline.
How Companies are Assessed
The following requirements are for the company applying for the Intra Company Transferee and the requirements of the applicant
General Company Requirements
- Physical Premise: The company must secure physical premises to house the Canadian operation, particularly in the case of specialized knowledge workers. However, in specific cases involving senior managers or executives, it may be acceptable that the address of the new start-up not yet be secured; for example, the company may use its counsel’s address until the executive can purchase or lease a premise
- Business Plan: The company must disclose realistic plans to staff the new operation
- Financial Ability: The company must be able to commence business in Canada, compensate employees accordingly, and show proof of financial capability
- Size (Managers/Executives): When transferring executives or managers, the company must:
- Demonstrate that it will be large enough to support executive or management function
- Size (Specialized Knowledge Worker): When transferring a specialized knowledge worker, the company must:
- Demonstrate that it is expected to be doing business
- Ensure that work is guided and directed by management at the Canadian operation
Foreign Worker Requirements
- Proof: Confirmation that the foreign national is currently employed by a multi-national enterprise outside Canada, and seeking entry to work in a parent, subsidiary, branch, or affiliate of that enterprise in Canada;
- One in Three: Confirmation that the foreign national has been employed (via payroll or by contract) continuously by the company outside Canada, in a similar full-time position, for at least one year within the three-year period immediately preceding the date of initial application
- Qualifying Job: Outline of the applicant’s position in an executive or managerial capacity or one involving specialized knowledge (i.e. position, title, place in the organization, job description).
- Education/Credentials: In the case of “specialized knowledge”, evidence that the person has such knowledge and that the position in Canada requires such knowledge
- Qualifying Job in Canada: Outline of the position in Canada (namely, position, title, place in the organization, job description)
- Duration: Indication of intended duration of stay (reasonable minimum guideline 18-24 months)
- Qualifying Relationship: Description of the relationship between the enterprise in Canada and the enterprise in the foreign country (the officer may request tangible proof to establish the relationship between the Canadian and foreign organizations wishing to make the transfer).
Defining the Qualifying Relationship
Between the Companies
Business Relationship: The Canadian and foreign enterprises must be legal entities that have a parent, subsidiary, branch or affiliate business relationship. Both the Canadian and foreign companies must be or will be doing business.
Operational: Doing business means regularly, systematically, and continuously providing goods and/or services by a parent, branch, subsidiary, or affiliate in Canada and the foreign country, as the case may be. It does not include the mere presence of an agent or office in Canada. Evidence of the fact that a company is actively doing business such as annual reports, articles of incorporation, profit/loss statements, partnership agreements, license to do business, business tax returns and registration with the CRA as an employer, may be useful. Both the Canadian and the foreign branches of the company must be doing business for the duration of the intended stay in Canada of the intra-company transferee.
A qualifying relationship remains if the Canadian and foreign entities continue to meet the definition of parent, subsidiary, affiliated or branch companies. If the entities no longer meet the requirements for these relationships, then any foreign intra-company transferee currently working for the Canadian entity would not qualify to continue working for the new entity. If the qualifying relationship remains, foreign intra-company transferees may continue to work for the new entity on the strength of their existing work permit.
Between the Employer and Foreign Worker
Canadian Company Must Exist: “Must take a position in Canada” under intra-company transferee provisions means that an employer-employee relationship with the Canadian branch of the company to which they are being transferred must exist. The essential element in determining this relationship is the right of the employer to order and control the employee in the performance of their work.
Evidence: The employer must be a legal entity. This can be proven with articles of incorporation, partnership agreements, license to do business, or evidence of registration with the Canada Revenue Agency (CRA) as an employer for example.
Factors to Consider in the Qualifying relationship
An applicant seeking entry to open a new office on behalf of the foreign enterprise may also qualify, after having established that the enterprise in Canada is expected to support a managerial or executive position or, in the case of specialized knowledge, is expected to be doing business.
Factors taken into consideration:
- ownership or control of the enterprise
- the premises of the enterprise
- the investment commitment
- the organizational structure
- the goods or services to be provided
- the viability of foreign operation and;
- The financial ability to support the new business
Non-qualifying business relationships: Would be those based on contracts, licensing arrangements and franchise agreements. Associations between companies based on factors such as ownership of a small amount of stock in another company, exchange of products or services, licensing or franchising agreements, membership on boards of directors, or the formation of consortia or cartels do not create affiliate relationships between the entities.
Work Permit Duration and Renewal
The initial work permit for an Intra-Company Transferee can be issued for a maximum period of 3 years under exemption code C-12. To renew a work permit, which is renewable up to a maximum of 5 years for specialized knowledge workers and 7 years for executives or managers under the C-12 exemption code, evidence should be provided that:
- Qualifying Relationship: The Canadian and foreign companies still have a qualifying relationship
- Operational: The new office has engaged in the continuous provision of goods or services for the past year
- Job Creation: The new office has been staffed
There are further regulations to breaks, recaptured time and other such factors if the worker is outside of Canada for a period of 30 days or greater. If the worker exhausts all their 5 (specialized knowledge) or 7 years (executives/managers) of working in Canada, they must work abroad for the same company for 1 year before re-applying as an Intra-Company Transferee.
Qualifying Job Positions for the Intra Company Transferee Program
Executives and Senior Managers
This group includes persons in the senior executive or managerial categories, in possession of a letter from a company conducting business in Canada, identifying the holder as an employee of a branch, subsidiary, affiliate or parent of the company which is located outside Canada. The holder must be transferring to a Senior Executive or Managerial level position at a permanent and continuing establishment of that company in Canada for a temporary period.
Executive capacity means that the employee primarily:
- directs the management of the organization or a major component or function of the organization;
- establishes the goals and policies of the organization, component, or function;
- exercises wide latitude in discretionary decision-making; and
- receives only general supervision or direction from higher-level executives, the board of directors, or stockholders of the organization.
Managerial capacity means that the employee primarily:
- manages the organization, a department, subdivision, function, or component of the organization;
- supervises and controls the work of:
- other managers or supervisors;
- professional employees, or
- manages an essential function within the organization, or a department or subdivision of the organization.
- has the authority to hire and fire, or recommend these and other personnel actions, such as promotion and leave authorization; if no other employee is directly supervised, functions at a senior level within the organizational hierarchy or with respect to the function managed; and,
- exercises discretion over the day-to-day operations of the activity for which the employee has the authority.
In general, executives and managers plan, organize, direct, or control the activities of a business, or a division of a business (e.g. Vice President of Marketing), either independently or through middle managers. They are frequently responsible for the implementation of the policies of a business. More senior persons, either alone or in conjunction with a board of directors, may formulate policies that establish the direction to be taken by the business.
Functional managers, in the intra-company transferee context, manage an essential function in the company but do not necessarily manage staff. Essential function generally means a function that is indispensable or important to achieving the organization’s goals. A functional manager must operate at a senior level within the organization or within the function managed and have discretion over the day-to-day operations of the function. Factors that may support functional manager status include:
- providing coordination and guidance to other managers
- having responsibility for assets or sales with a large dollar value
- directing the work of subcontracted firms
All persons included should be in the NOC group 0 applying to Management Occupations. Only those persons whose positions are defined as Senior Managers who plan, organize, direct or control a business should be included. This exemption is not available to persons whose positions are more accurately defined as middle managers. As a result: NOC groups 0013 to 0016 should be included and NOC groups 01 to 09 may be included depending on the responsibility of the position.
Exclusions: Excluded will be persons who are in positions that are more accurately defined as junior management. Positions defined as managing supervisor, supervisor, or foreman, or persons with managerial sounding titles only, would not qualify. A first-line supervisor is not considered to be acting in a managerial capacity unless the employees who are being supervised are professionals. A functional manager does not primarily perform tasks required in the production of a product or in the delivery of a service.
Specialized Knowledge Workers
In order for the applicant to be eligible for the exemption, it must be determined that the applicant possesses a high standard of “specialized knowledge”
Defining Specialized knowledge
As set out in Canada’s commitment in the General Agreement on Trade in Services (GATS), an ICT 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”.
To have specialized knowledge any ICT applicant would be 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. All ICT Specialized Knowledge applicants are subject to this refined definition of specialized knowledge unless there is a specific definition that might be different in a specific Free Trade Agreement.
1) Proprietary Knowledge
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:
- uncommon knowledge of the host firm’s products or services and its application in international markets; or
- an advanced level of expertise or knowledge of the enterprise’s processes and procedures such as its production, research, equipment, techniques or management.
2) Advanced Expertise
An advanced level of expertise is also required, which would require specialized knowledge gained through significant (i.e. the longer the experience, the more likely the knowledge is indeed “specialized”) and recent (i.e. within the last 5 years) experience with the organization and used by the individual to contribute significantly to the employer’s productivity. In assessing such expertise or knowledge, officers 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 significant disruption of business would occur without the applicant’s expertise; and
- the applicant’s proprietary knowledge of a particular business process or method of operation must be unusual, not widespread across the organization, and not likely to be available in the Canadian labour market.
IRCC considers specialized knowledge to be the 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.
The onus is on the applicants to provide evidence that they meet this standard. Documentary evidence may include, but is not limited to, the following:
- a resume
- reference letters
- letter of support from the company
- job descriptions that outline the level of training acquired
- years of experience in the field
- degrees or certifications obtained in the field
- list of publications and awards (where applicable)
- a detailed description of the work to be performed in Canada.
- ICT Specialized Knowledge workers must be clearly employed by, and under the direct and continuous supervision of, the host company;
When determining if a foreign worker indeed holds specialized knowledge, officers can look at the following elements to better guide their opinion/decision: Occupation (NOC), Education, Experience, Specialized Training, Wage Floor, etc.
Note: The longer the experience, the more likely the knowledge is indeed “specialized”. Although the foreign worker may have only 1 year of experience with the foreign company, they may be considered to have proprietary knowledge beneficial to the Canadian company. They must demonstrate comprehensive knowledge of a specific facet of the company (which may have been acquired within that year or had worked on extensively) accompanied by studies in the appropriate field and/or years of experience in an associated industry.
Date of Publication: February 26, 2020
By Sean G McKinsley, Managing Partner, Canada Immigration and Visa Services
Canada Immigration and Visa Services
Calgary Canada Head Office: +1 587-400-3350
Fax: +1 587-400-4515
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