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Canadian Interests – Intra-Company Transferee under Reg. 205(a) – C12 Exemption

canada-jobsOn June 20, 2014, the Ministry of Employment Social Development and the Ministry of Citizenship and Immigration Canada made a number of significant changes to the Temporary Foreign Worker Program (TFWP), as their joint programs to minister between them. It is important to note that the framework of TFWP has shifted so that all foreign workers under TFWP now require a Labour Market Impact Assessment (LMIA) – formerly known as Labour Market Opinion (LMO).

All foreign workers who do not require LMIA are now under the new International Mobility Programs (IMP), administered by Citizenship and Immigration Canada. The main objective of IMP is to advance Canada’s broad economic and cultural national interest. Below I’ll explain Intra-Company Transferee Exemption under s. 205(a) of Immigration Refugee Protection Regulation – C12.

A number of basic requirements must be met for a C12 Exemption:

  1. A foreign worker must be currently employed a by a multi-national company and seeking entry to work in a parent, subsidiary, branch, or affiliate of that company located in Canada;
  2. A foreign worker is being transferred to an enterprise that has a qualifying relationship with the enterprise in which he/she is currently employed, and will be undertaking employment at a legitimate and continuing establishment of that company;
  3. A foreign worker is being transferred to a position in an Executive, Senior Managerial, or Specialized Knowledge capacity; and
  4. A foreign worker has been employed continuously (via payroll or by contract directly with the company), by the company that plans to transfer him/her, outside of Canada in a similar full-time position for at least one year in the three-year period immediately preceding the date of initial application

Once both companies – the foreign company and the Canadian company meet their eligibility, the foreign worker’s job description must be established. For Intra-Company Transferee with Specialized Knowledge, many changes also occurred as of June 9, 2014.

Through the 2012-2013 Economic Action Plan, CIC has clearly demonstrated that their objective for TFWP is to be sensitive to the current labour market demands (then, TFWP includes IMP as well) and to encourage Canadian employers to look for domestic labour forces as a priority before seeking a Temporary Foreign Worker.

To be successful, both the foreign worker and the Canadian employer must demonstrate that the entry of the foreign worker will allow international companies to improve management effectiveness, expand Canadian exports and/or enhance competitiveness in oversea markets.

First, Citizenship and Immigration Canada will investigate rigorously on the job description and job qualifications to see if the foreign worker in fact possesses any “specialized knowledge.” In other words, the definition of “specialized knowledge” will be reviewed thoroughly before acknowledging the foreign worker to have such “specialized knowledge” under IMA.

Second, some Intra-Company Transferees must have mandatory wages to protect Canadian workers – to be displaced by “less paid” foreign workers located outside of Canada.

Third, the foreign worker must demonstrate, on a balance of probability, a high degree of both (a) proprietary knowledge of the company’s product, service, research, equipment, techniques or management and (b) advanced expertise. Some documentary evidence may include; a resume, reference letters, letter of support from the company, a job description, or an outline level of training acquired. To be qualified, both the foreign worker and the company must provide a broad range of documented evidence.

In light of the difficulty involved in obtaining LMIA, this is an excellent way for multi-national corporations to move their workforces effectively without losing processing time for LMIA. However, as stated, the “Canadians First” policy is being rolled out in full in force and this exemption should be used appropriately with more than sufficient documentary evidence to demonstrate the need for a foreign worker under IMP.

If you have any individual questions or concerns, please contact our office for more customized consultation for your unique situation.  Please note that this posting is for general information only and is not to be considered binding or official legal counsel since situations will vary and can be complicated. The content in this post is current as of the day of entry. Due to the changing nature of Immigration law, the information in this entry may or may not still be applicable.