MMChocolate said:
On page 2, it says Eligibility: Review required. :'(
Here is what you need to know:
PART 1- Qualifying relationship employer employee
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International Mobility Program: Canadian interests – Significant benefit – Intra-company transferees – Qualifying relationship between the employer and the foreign worker [R205(a)] (exemption code C12)
This section contains policy, procedures and guidance used by Immigration, Refugees and Citizenship Canada staff. It is posted on the Department’s website as a courtesy to stakeholders.
“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 commitment, 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."
PART 2- QUALIFYING JOB POSITIONS-MANAGERIAL
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International Mobility Program: Canadian interests – Significant benefit – Intra-company transferees – Qualifying job positions [R205(a)] (exemption code C12)
This section contains policy, procedures and guidance used by Immigration, Refugees and Citizenship Canada staff. It is posted on the Department’s website as a courtesy to stakeholders.
Executives and Senior Managers
As in NAFTA, this group includes persons in the senior executive or managerial categories, in possession of a letter from a company conducting business in Canada, identifying the holder as an employee of a branch, subsidiary, affiliate or parent of the company which is located outside Canada. The holder must be transferring to a Senior Executive or Managerial level position at a permanent and continuing establishment of that company in Canada for a temporary period.
Executive capacity means that the employee primarily:
•directs the management of the organization or a major component or function of the organization;
•establishes the goals and policies of the organization, component, or function;
•exercises wide latitude in discretionary decision-making; and
•receives only general supervision or direction from higher level executives, the board of directors, or stockholders of the organization.
Managerial capacity means that the employee primarily:
•manages the organization, a department, subdivision, function, or component of the organization;
•supervises and controls the work of: ◦other managers or supervisors;
◦professional employees, or
◦manages an essential function within the organization, or a department or subdivision of the organization.
•has the authority to hire and fire, or recommend these and other personnel actions, such as promotion and leave authorization; if no other employee is directly supervised, functions at a senior level within the organization hierarchy or with respect to the function managed; and,
•exercises discretion over the day-to-day operations of the activity or function for which the employee has the authority.
In general, executives and managers plan, organize, direct, or control the activities of a business, or a division of a business (e.g. Vice President of Marketing), either independently or through middle managers. They are frequently responsible for the implementation of the policies of a business. More senior persons, either alone or in conjunction with a board of directors, may formulate policies which establish the direction to be taken by the business."
PART 3-FUNCTIONAL MANAGERS
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International Mobility Program: Canadian interests – Significant benefit – Intra-company transferees – Qualifying job positions for functional managers [R205(a)] (exemption code C12)
This section contains policy, procedures and guidance used by Immigration, Refugees and Citizenship Canada staff. It is posted on the Department’s website as a courtesy to stakeholders.
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."
PART 4- SPECIALIZED KNOWLEDGE WORKERS
International Mobility Program: Canadian interests – Significant benefit – Intra-company transferees – Qualifying job positions for specialized knowledge workers [R205(a)] (exemption code C12)
This section contains policy, procedures and guidance used by Immigration, Refugees and Citizenship Canada staff. It is posted on the Department’s website as a courtesy to stakeholders.
Qualifying job positions for specialized knowledge workers
As of June 9th, 2014, a more rigorous assessment will be applied by officers processing work permit applications for Intra-company Transferees (ICTs) applying as Specialized Knowledge workers.
In order for the applicant to be eligible for the exemption (whether under R204 or R205), it must be determined that the applicant possesses a high standard of "specialized knowledge". For entries pursuant to R205, the applicant must be offered a wage given consistent with the Canadian prevailing wage.
Specialized knowledge
As set out in Canada’s commitment in the General Agreement on Trade in Services (GATS), an ICT Specialized Knowledge worker must possess “knowledge at an advanced level of expertise” and “proprietary knowledge of the company’s product, service, research, equipment, techniques or management.”
To have specialized knowledge any ICT applicant would be required to demonstrate, on a balance of probabilities, a high degree of both proprietary knowledge and advanced expertise.
Proprietary knowledge alone, or advanced expertise alone, does not qualify the applicant under this exemption.
All ICT Specialized Knowledge applicants—including entries under the NAFTA—are subject to this refined definition of specialized knowledge, unless there is a specific definition that might be different in a specific FTA. For example, officers assessing applicants from Colombia or Peru, in particular, should consult the links provided for additional detail on the definitions of “specialized knowledge” captured in Canada’s FTAs with those countries.
Proprietary knowledge is company-specific expertise related to a company’s product or services. It implies that the company has not divulged specifications that would allow other companies to duplicate the product or service.
Advanced proprietary knowledge would require an applicant to demonstrate:
•uncommon knowledge of the host firm’s products or services and its application in international markets; or
•an advanced level of expertise or knowledge of the enterprise’s processes and procedures such as its production, research, equipment, techniques or management.
An advanced level of expertise is also required, which would require specialized knowledge gained through significant (i.e. the longer the experience, the more likely the knowledge is indeed “specialized”) and recent (i.e. within the last 5 years) experience with the organization and used by the individual to contribute significantly to the employer’s productivity.
In assessing such expertise or knowledge, officers consider:
•abilities that are unusual and different from those generally found in a particular industry and that cannot be easily transferred to another individual in the short-term;
•the knowledge or expertise must be highly unusual both within the industry and within the host firm;
•it must be of a nature such that the applicant’s proprietary knowledge is critical to the business of the Canadian branch and a significant disruption of business would occur without the applicant’s expertise; and
•the applicant’s proprietary knowledge of a particular business process or methods of operation must be unusual, not widespread across the organization, and not likely to be available in the Canadian labour market.
Example: Skill in implementing an off-the-shelf product would not, by itself, meet the standard of specialized knowledge; unless, for example, the product is new or being highly customized to the point of being a “new” product. In other words, an ICT applicant is more likely to have truly specialized knowledge if they directly contribute to the (re)development of a product, rather than to the implementation of a pre-existing product.
CIC considers specialized knowledge to be knowledge that is unique and uncommon; it will by definition be held by only a small number or small percentage of employees of a given firm. Specialized Knowledge workers must therefore demonstrate that they are key personnel, not simply highly skilled.
The onus is on the applicants to provide evidence that they meet this standard. Documentary evidence may include, but is not limited to, the following:
•a resume
•reference letters
•letter of support from the company
•job descriptions that outlines the level of training acquired
•years of experience in the field
•degrees or certifications obtained in the field
•list of publications and awards (where applicable)
•a detailed description of the work to be performed in Canada.
ICT Specialized Knowledge workers must be clearly employed by, and under the direct and continuous supervision of, the host company;
Processing instructions
Officers will be required to assess all the information presented to them and then use their good judgment to come to a decision. The onus is always on the applicant to support their application with credible documentation and explain in full the purpose and scope of their work in Canada, either in writing or at an interview.
If the officer is not satisfied that the applicant is eligible for the “Specialized Knowledge” Labour Market Impact Assessment (LMIA) exemption category, the application should be refused as per the regular refusal procedures. For those clients who require an LMIA, the officer should tick the following section in the GCMS work permit refusal letter:
•You have not demonstrated that you come within the exceptions under section 186 of the regulations exempting you from the requirement to obtain a work permit or that your employment in Canada comes within the exceptions to section 203 of the regulations. As a result, your offer of employment must be the subject of an economic effect determination (i.e., LMIA) before a work permit can be issued to you. Your employer in Canada should contact the local office of ESDC to begin this process. "
Hope this helps!
