Help. Intra Company Transfer work permit rejected! (Apply from Australia)

[maplehusky]

Hi folks,

Need some advise on this one please.

I am a Chinese citizen, living in Australia. Very recently my employer in Australia wants to send me to our Canadian office (a full subsidiary of the Australian parent company).

But it just got refused today. And the below is the decision letter:

I am refusing your application on the following grounds: You have not demonstrated that you come within the exceptions of R205(a), as a functional manager, because you have not occupied a similar, managerial position for at least one year in the last three with your current employer. An LMIA may be required.

You are welcome to reapply if you feel that you can respond to these concerns and can demonstrate that your situation meets the requirements. All new applications must be accompanied by a new processing fee,

Sounds like because im not a manager in Australia and i cannot be working as a Manager in Canada?
The thing is that the only difference is the title,(Currently im an "analyst", and will be working as a "manager"), but apart from that, my working duties, my resume and what im currently doing match perfectly. Seems that i was rejected a permit because my title was changed from "analyst" to "Manager"...

My employer will re-apply and explain the situation.

Anyone came across this situation? What are the chances if we explain the issue to the Immigration Department of Canada? And I checked the processing time, it generally takes 3 weeks to process if applying from Australia, if we re-apply, would this timeline change? or it may take longer or shorter since there is already a case existing?

Thank you and sorry for the long post...really appreciate if anyone could provide anything on this.

 

[maplehusky]

Most of the companies hire an immigration lawyer to file ICT. Yes, you will have to demonstrate that you perform activities as a manager or have specialized skills before it can be approved. Look up the NOC Code corresponding to your job and try to define your role based on what's in the lead statement.

Thanks for that. My employer did use a lawyer in Toronto to apply for the ICT work permit. and he will re-apply in next few days. We just don't understand how this could be rejected...like the duties i am performing now in Australia is exactly the same as the expected managerial duties I am about to perform when I am transferred to Canada. We found it was a bit weird...

 

[scylla]

Thanks for that. My employer did use a lawyer in Toronto to apply for the ICT work permit. and he will re-apply in next few days. We just don't understand how this could be rejected...like the duties i am performing now in Australia is exactly the same as the expected managerial duties I am about to perform when I am transferred to Canada. We found it was a bit weird...

I think you're going to be refused again.

To be approved, you needed to have been in a managerial role in Australia for at least a year before being transferred here. It's not just a title change between Australia and Canada. Based on what you've said, you're going to be taking on managerial duties in Canada that you don't have today in Australia. If that's correct, this doesn't meet the requirements for an ICT and an LMIA is required.

 

[zardoz]

Hi folks,

Need some advise on this one please.

I am a Chinese citizen, living in Australia. Very recently my employer in Australia wants to send me to our Canadian office (a full subsidiary of the Australian parent company).

But it just got refused today. And the below is the decision letter:

I am refusing your application on the following grounds: You have not demonstrated that you come within the exceptions of R205(a), as a functional manager, because you have not occupied a similar, managerial position for at least one year in the last three with your current employer. An LMIA may be required.

You are welcome to reapply if you feel that you can respond to these concerns and can demonstrate that your situation meets the requirements. All new applications must be accompanied by a new processing fee,

Sounds like because im not a manager in Australia and i cannot be working as a Manager in Canada?
The thing is that the only difference is the title,(Currently im an "analyst", and will be working as a "manager"), but apart from that, my working duties, my resume and what im currently doing match perfectly. Seems that i was rejected a permit because my title was changed from "analyst" to "Manager"...

My employer will re-apply and explain the situation.

Anyone came across this situation? What are the chances if we explain the issue to the Immigration Department of Canada? And I checked the processing time, it generally takes 3 weeks to process if applying from Australia, if we re-apply, would this timeline change? or it may take longer or shorter since there is already a case existing?

Thank you and sorry for the long post...really appreciate if anyone could provide anything on this.

Read the eligibility criteria. You need to be at a significant management level.
https://www.canada.ca/en/immigration-refugees-citizenship/corporate/publications-manuals/operational-bulletins-manuals/temporary-residents/foreign-workers/exemption-codes/intra-company-transferees/canadian-interests-significant-benefit-qualifying-job-positions-functional-managers-r205-a.html

 

[maplehusky]

I think you're going to be refused again.

To be approved, you needed to have been in a managerial role in Australia for at least a year before being transferred here. It's not just a title change between Australia and Canada. Based on what you've said, you're going to be taking on managerial duties in Canada that you don't have today in Australia. If that's correct, this doesn't meet the requirements for an ICT and an LMIA is required.

Thank you. The thing is what I am doing in Australia is the function of a "Finance Manager", but i was titled as an "analyst". If i just change my title from Analyst to Finance Manager, none of my duties will change.
And that's also the job description from the Canadian office. The managerial duties will be the same as what i am doing currently in Australia.
Do you think if i get my lawyer to explain that to the embassy, it will be qualified as ICT?

 

[Buletruck]

It’s the title, not the function. If you changed your title today, you would need to be in the position for at least a year. I doubt a lawyer would be able to convince IRCC that their interpretation of the requirements is incorrect.

 

[scylla]

Thank you. The thing is what I am doing in Australia is the function of a "Finance Manager", but i was titled as an "analyst". If i just change my title from Analyst to Finance Manager, none of my duties will change.
And that's also the job description from the Canadian office. The managerial duties will be the same as what i am doing currently in Australia.
Do you think if i get my lawyer to explain that to the embassy, it will be qualified as ICT?

IMO you don't qualify for the ICT and reapplying will be a waste of time. Your managerial job is too junior. I don't think that changing the title will make a difference. The role has to be "senior managerial" per IRCC and your role doesn't meet this requirement.

 

[maplehusky]

IMO you don't qualify for the ICT and reapplying will be a waste of time. Your managerial job is too junior. I don't think that changing the title will make a difference. The role has to be "senior managerial" per IRCC and your role doesn't meet this requirement.

Thank you. Does this mean it may be a good idea to go through LIMA?
I was looking at the processing time from Australia to Canada.it takes 3 weeks. Does this time include LIMA time as well? The initial application didn't take long, although it got refused Don't feel like going through LIMA

 

[maplehusky]

It’s the title, not the function. If you changed your title today, you would need to be in the position for at least a year. I doubt a lawyer would be able to convince IRCC that their interpretation of the requirements is incorrect.

The lawyer has just sent back something: I have revised the Canadian letter to state that the job XXX is currently performing in Australia is functionally and substantively the same job he will perform in Canada despite the title difference. The reason for the title difference is so that we can explicitly say that he is in the National Occupational Classification he needs to be in to take advantage of the Functional Managerial exemption.

They would like to do it this way, convincing the title is the only issue.

 

[scylla]

Thank you. Does this mean it may be a good idea to go through LIMA?
I was looking at the processing time from Australia to Canada.it takes 3 weeks. Does this time include LIMA time as well? The initial application didn't take long, although it got refused Don't feel like going through LIMA

No - this doesn't include LMIA processing times.

The LMIA is a separate process that your employer must complete. Generally it takes 4-5 months end to end but can sometimes be faster. As a first step, your employer must advertise the job for at least a month following the LMIA advertising rules to prove no Canadian could be found for the job.

 

[scylla]

The lawyer has just sent back something: I have revised the Canadian letter to state that the job XXX is currently performing in Australia is functionally and substantively the same job he will perform in Canada despite the title difference. The reason for the title difference is so that we can explicitly say that he is in the National Occupational Classification he needs to be in to take advantage of the Functional Managerial exemption.

They would like to do it this way, convincing the title is the only issue.

I think there's still an extremely high chance it's going to be refused. Again, your role is too junior. See requirements (per IRCC) to meet the definition of a functional manager:

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 indispensible 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 over assets or sales with a large dollar value;
• directing the work of subcontracted firms.

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.

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;
• NOC groups 01 to 09 may be included depending on the responsibility of the position.

 

[maplehusky]

No - this doesn't include LMIA processing times.

The LMIA is a separate process that your employer must complete. Generally it takes 4-5 months end to end but can sometimes be faster. As a first step, your employer must advertise the job for at least a month following the LMIA advertising rules to prove no Canadian could be found for the job.

Thank you for the reply. I know there is a 10 days processing for LIMA, which is only available for "Top 10% of wages earned by Canadians in that province or territory". By any chance do you know what the top 10% wage is? $85,000?$100,000? or over?

 

[scylla]

Thank you for the reply. I know there is a 10 days processing for LIMA, which is only available for "Top 10% of wages earned by Canadians in that province or territory". By any chance do you know what the top 10% wage is? $85,000?$100,000? or over?

Answer here (it's a per hour amount):

https://www.canada.ca/en/employment-social-development/services/foreign-workers/service-tables.html

But don't count on the 10 days. We see tons of people here who qualify for 10 day processing but still wait 2-4 months. Also keep in mind that your employer has to complete the 1 month of advertising separately and first (before applying for the LMIA).

 

[adel23]

Hello, so any update regarding your application?

 

[Mikeprat]

Did you get your visa, mine also was the same. We have applied for officer notes and then we got some information so now applied again. Hope I will get visa this time