International Mobility Program: Intra-company transferee
The intra-company category permits international companies to temporarily transfer qualified employees to Canada for the purpose of improving management effectiveness, expanding Canadian exports, and enhancing competitiveness in overseas markets.
Qualified intra-company transferees require work permits and are exempted from the Labour Market Impact Assessment (LMIA) 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 General Agreement on Trade in Services (GATS).
Paragraph R204(a) provides for LMIA exemption code T24 for qualified intra-company transferees who are citizens of a country that has signed a free trade agreement (FTA) with Canada, namely NAFTA (and similar FTAs), and supplements the Immigration and Refugee Protection Act 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, a subsidiary, a branch or an affiliate of that enterprise;
- are transferring to an enterprise that has a qualifying relationship with the enterprise in which they are 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 an 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 them 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.
Assessing start-up companies:
Requirements for the company
Generally, the company must secure physical premises to house the Canadian operation, particularly in the case of specialized knowledge. The company must furnish realistic plans to staff the new operation. The company must have the financial ability to commence business in Canada and compensate employees. When transferring executives or managers, the company must demonstrate that it will be large enough to support an executive or management functions.
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.
Duration of work permits
Initial work permit: One year
For renewals, evidence should be provided that the Canadian and foreign companies still have a qualifying relationship;
the new office has engaged in the continuous provision of goods or services for the past year;
the new office has been staffed.
Eligibility criteria apply to both the senior managerial and specialized knowledge categories
In the context of a recent corporate acquisition or merger, it is not a requirement that the applicant has worked for the named sending company for a year provided that the applicant has been working for one of the affiliates for at least one year in the previous three years as long as the new “successor entity” can demonstrate that it has assumed the interests and obligations, assets and liabilities of the original owner, and continues to operate the same type of business as the original owner.
Intra-company transferees are not necessarily required to relocate to Canada. However, they are expected to actually occupy a position within the Canadian branch of the company; there should be a clear employer-employee relationship with the Canadian company, and the Canadian company should be directing the day-to-day activities of the foreign worker. This is especially important for employees working at client sites and not at the parent, branch, affiliate, or subsidiary.
The following documentation is required:
- 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;
- confirmation that the foreign national has been employed (via payroll or by contract) continuously (full-time, not accumulated part-time) by the enterprise 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;
- 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);
- in the case of “specialized knowledge”, evidence that the person has such knowledge and that the position in Canada requires such knowledge;
- outline of the position in Canada (namely, position, title, place in the organization, job description);
indication of intended duration of stay; and
- 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).
Intra-company transferee duration of the work permit limit
After intra-company transferees have reached their maximum work permit duration (seven years for executives and senior managers, and five years for specialized knowledge workers), they must complete one year of full-time employment in the company outside Canada if they wish to re-apply as an intra-company transferee. This requirement, which exists in NAFTA, applies to all intra-company transferees, whether they enter under the Immigration and Refugee Protection Act general provisions of paragraph R205(a) or under the international trade agreement provisions of paragraph R204(a). It also applies to foreign nationals who wish to switch from a work permit issued under paragraph R205(a) to a work permit issued under paragraph R204(a).
Qualifying relationship between the Canadian and foreign employer
The Canadian and foreign companies must be legal entities that have a parent, subsidiary, branch, or affiliate business relationship. Both Canadian and foreign companies must be or will be doing business.
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. 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 (for public companies), articles of incorporation, profit/loss statements, partnership agreements, license to do business, business tax returns and registration with Canada Customs and Revenue Agency 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. The foreign national employee must be able to transfer back to the foreign company at the end of their assignment in Canada.
Business enterprise means any entity constituted or organized under applicable law, and either privately-owned or owned by the government, including any corporation, trust, partnership, sole proprietorship, joint venture, or other associations.
Also included are religious, charitable, service, or other non-profit organizations that must demonstrate that it is a firm, corporation, or other legal entity that has a parent, subsidiary, branch, or affiliate relationship. Therefore, there is no difference in this regard to commercial entities. Both the Canadian and foreign entities must be legal entities. For intra-company transferee classification, ownership and control are the factors which establish a qualifying parent, branch, subsidiary, or affiliate relationship. Ownership means the right to possession with full power and authority to control. Control means the right and authority to direct the management and operations of the entity.
Qualifying relationship between the employer and the foreign worker
“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. While full-time employment by the Canadian branch is anticipated, there is no requirement that the foreign national perform full-time service in Canada. An executive, for example, could divide normal working hours between offices in Canada and the U.S. There is no requirement that the foreign national be paid from the Canadian entity; however, this is usually the case.
Evidence that an employer is a legal entity may be articles of incorporation, partnership agreements, license to do business, evidence of registration with the Canada Revenue Agency (CRA) as an employer.
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.
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 such as the ownership or control of the enterprise, the premises of the enterprise, the investment committee, the organizational structure, the goods or services to be provided and the viability of foreign operation should be considered. The financial ability to support the new business should also be taken into consideration.
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