CorporateBusiness Visas and Related Issues
Non-LMO Based Work Permits:
Intra-Company Transfer Provisions
Canadian Interests: Significant benefit Intra-company Transferees R205(a), C12
(edited from: FW1 Foreign Worker Manual )
The intra-company category was created to permit international companies to temporarily transfer qualified employees to Canada for the purpose of improving management effectiveness, expanding Canadian exports, and enhancing the competitiveness of Canadian entities in overseas markets.
The entry of intra-company transferees is guided by the IRPA regulations and the general provisions of this section, and is supplemented by provisions contained in international trade agreements for citizens of signatory countries.
Qualified intra-company transferees require work permits and are LMO exempt under R205(a), C12, as they provide significant economic benefit to Canada through the transfer of their expertise to Canadian businesses. This applies to foreign nationals from any country, including under the GATS.
Regulation 204(a) provides LMO exemption code T24 for qualified intra-company transferees who are citizens of a country that has signed an international agreement with Canada, namely NAFTA (and similar FTAs) , and supplements the IRPA general provisions.
Intra-company transferees may apply for work permits under the general provision if they:
• are currently employed by a multi-national company and seeking entry to work in a parent, subsidiary, branch, or affiliate of that enterprise; are transferring to an enterprise that has a qualifying relationship with the enterprise in which he or she is currently employed, 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);
• are being transferred to a position in a Executive, Senior Managerial, or Specialized Knowledge capacity; have been employed continuously (via payroll or by contract directly with the company), by the company that plans to transfer him or her, 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.
Requirements for the Workers
• Executives/managers: company must demonstrate that it will be large enough to support executive or management function
• Specialized Knowledge: company must demonstrate that it is expected to be doing business; work must be guided and directed by management at the Canadian operation
Border Guards: Our New Best Friends
A particularly attractive feature of an intracompany transferee work permit application is that in many cases such an application can be processed at a port of entry by a visa officer. This means that the visa could potentially be obtaining the same day with a minimum impact to business by avoiding significant delay.
At the same time, all of the usual difficulties associated with dealing with immigration officials at the border still apply. It is extremely important to ensure that all of your documents are well-prepared and organized prior to their presentation, and that it is easy for an officer to understand the nature of your business and the reason why you are being transferred.
Because of the complexity of these applications we frequently receive requests from clients or their lawyers for assistance in their preparation. We strongly recommend that you contact us for further information regarding this process, and we will be happy to provide a free consultation to discuss different options.
Keeping Business Moving:
Dealing with Visa Post Strikes: Tips on Planning Ahead
As you may already be aware, the time of writing this article CIC visa offices both abroad and inside Canada are experiencing rotating strikes. Although there is no official statement regarding the impact this is currently having, reports from within the immigration legal community suggest that some offices are processing at as low as 25% of normal capacity. This makes it extremely difficult to predict exactly how long applications will take to process, and accordingly creates headaches for everyone involved. In particular, it has had a devastating impact upon businesses that are relying upon foreign workers to enter the country (and perhaps this was the intention of the workers get the attention of politicians).
Regardless, in order to ensure that your business is not suffer because of these delays, it is extremely important to plan ahead us far as possible regarding staffing needs. Accordingly, we have a few recommendations below that can potentially be helpful:
If you prepare an application in advance for any worker that you have not met, it can save significant time in the application process. Much of the documentation required to support a foreign worker application is related to the company itself rather than the particulars of an individual person. Accordingly, it is possible to create applications in advance that can subsequently be tweaked in order to speed up the process.
GO TO THE BORDER
As described above regarding intracompany transferees, there are some situations in which you can go to the port of entry to apply for a foreign worker permit. There are some legal restrictions on this however, so please contact us for advice before getting in the car.
If you’ve already found the right candidate, but are not sure when you’re going to hire them, consider drafting a conditional offer of employment founded upon obtaining a work permit within a specified window of time. By creating this window you can allow yourself some flexibility in the exact timing of the start date, and if an applicant obtains their visa but then does not commence work until sometime after so be it.