Canada updates Intra-Company Transfer Rules

by | Jun 3, 2019 | Tippet Richardson

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Introduction

One of the most important work permit categories in Canadian immigration law is certainly that of ‘Intra-Company Transfer’ (ICT). In general terms, this LMIA exemption allows corporations to send foreign workers to Canadian affiliates if they meet certain conditions, including:

  • Establishment of the appropriate corporate relationship between the sending (foreign) and receiving (Canadian) entities,
  • Confirmation that the person has worked for the foreign affiliate for at least 1 year in the last 3 (with some exceptions), and
  • Evidence that the person is filling an executive, senior managerial, or specialized knowledge role.

There are certainly other details to consider, but these are the essential elements of an ICT application.

It is also important to note that there are multiple legal bases for ICT applications – some can be processed under the ‘general’ regulations, and some are processed under applicable Free Trade Agreements (FTAs) including NAFTA, the Canada-European Union Free Trade Agreement (CETA), and the Comprehensive and Progressive Free Trade Agreement (CPTPP). Though all the ICT provisions at this time are similar, there are differences of nuance in some circumstances.

Immigration, Refugees and Citizenship Canada (IRCC) has just provided some guidance to its field officers with regard to ICTs, which guidance should be used by ‘end users’ (i.e. corporations and their employees relying on this category, as well as their representatives) to ensure that they meet the requirements that adjudicating officers are looking for.

Regulatory-based vs. FTA Intra-Company Transfer Applications

The primary IRCC guidance issued is that ICT applicants should have their cases processed based on the legal criteria requested – that is, either the general regulatory provisions, or a particular FTA, as the case may be. As noted, most ICT provisions are similar, but there may be differences in some situations, such as, for example,

  • The fact that the Canada-Peru Free Trade Agreement allows for ICT after only 6 months of employment with a foreign affiliate, AND, it also allows for consideration of Peruvian permanent residents (while in all other cases, considerations are based on citizenship).
  • IRCC guidance for CETA implies that extensions of CETA ICTs may be limited to 18 months, with officer’s discretion, after an initial 3 year maximum period.

Recaptured Time

ICT-based work permits have general maximum validity periods – 5 years for specialized workers, and 7 years for managerial workers (these may be reached through multiple renewals after initial approval). To determine whether a worker has met his or her cap, officers first look at the actual work permits, but time may be ‘recaptured’ if evidence is presented that part of the time was spent not working, or not working in Canada.

IRCC’s new guidance now says that recapture is not considered for any time periods of less than 30 consecutive days. This may be problematic for workers who travel frequently, and for periods of less than 30 days.

Further, in the event that a work permit renewal is issued that accounts for recaptured time, IRCC has confirmed that time spent not working during that new period cannot now be reused for the purpose of further recapture.

Start-Up Scenarios

Typically, ICTs occur where a company already has an established business in Canada (as well as, of course, abroad). In some situations though, where a company is launching anew in Canada, ICTs are allowed for such ‘start-up’ scenarios. But, in such start-up scenarios, IRCC is seeking additional information and documentation to support the application. IRCC is indicating (or in some cases, confirming) that, among other matters:

  • Where the initial transferee is in a specialized position, it is generally expected that the business already has premises in Canada. [Allowance is made for managerial-level employees who may indeed be coming to start the operation, and who may therefore be tasked with finding premises.]
  • The transfer of executives/managers must be supported by evidence that the business is large enough to support such functions
  • Where the transfer is of a specialized knowledge worker, the worker should be directed by management at the Canadian operation, and
  • Initial work permits in start-up scenarios are for 1 year only; renewal requires evidence that the new Canadian operation has engaged in the continuous provision of goods or services for the prior year, and that the new office has been staffed.

Multiple Short-Term Projects/‘Parachuting’

In prior guidance, IRCC indicated that foreign companies with Canadian clients should not use their Canadian affiliate companies (who are otherwise uninvolved in the situation) as vehicles simply to allow the foreign companies’ foreign workers to ‘parachute’ in to Canada to carry out their duties. In what appears to be a shift from such prior guidance, IRCC has indicated that where a foreign company has a project or projects in Canada, it may issue an ICT work permit (using the Canadian operation) for up to 1 year to facilitate the need for the foreign worker to fulfill his duties. This seems to be a variation to prior guidance. The new guidance does still restrict such ‘parachuting’ to 1 year maximums.

Summary

Some of the above may have significant impact on various ICT applications, and corporations, and their representatives, who wish to utilize ICT provisions to send foreign workers to Canada should be aware of the changes.

*For general use only not as legal document