Intra Company Transferee (LMIA Exempt)

Intra Company Transferee (LMIA Exempt)

The intra-company category allows international companies to transfer skilled and qualified employees to Canada temporarily. The transfer of qualified employees is done to enhance competitiveness in the overseas market, expand Canadian exports, and improve management effectiveness. 

The entry of intra-company transferees is done by the Immigration and Refugee Protection Regulations (IRPR). The general sections of IRPR are supplemented by provisions that are contained in international trade agreements for the citizens of countries that are a signatory to it. 

· Work permits are required by qualified intra-company transferees. As per paragraph R205(a) (exemption code C12) they are exempt from Labour Market Impact Assessment (LMIA). This is because they provide substantial economic benefits to Canada by transferring their expertise to Canadian businesses. 

The exemption applies to foreign nationals from any country including those under GATS (General Agreement on Trade-in Services).

· LMIA exemption (code T24) under paragraph R204(a) allows for qualified intra-company transferees who happen to be citizens of countries that have signed an FTA (Free Trade Agreement) with Canada. 

LMIA Exempt Canadian Work Permit

The rule is that individuals who apply for a work permit also require a Labour Market Impact Assessment (LMIA) but there are several exemptions to this rule. 

The group of programs exempt from LMIA is known as International Mobility Programs.

Canada has multilateral and bilateral agreements with certain countries. This is to facilitate the movement of qualified foreign workers across international borders. 

The individuals exempt from requiring a Labor Market Opinion include: 

· Workers Covered Under International Agreements 

NAFTA (North America Free Trade Agreement) allows investors and professionals to get work permits without a labor market opinion. 

· Foreign Workers Dependents (Children and Spouse) with A Work Permit (Canadian) for a Skilled Position 

It is important to remember that this does not apply to the spouses of visa holders who are on working holiday. 

· Provincial Nominees 

Individuals with a certificate of selection or nomination and having a job offer in the province they are selected or nominated are exempt from having a labor market opinion. 

The LMIA negotiations are been re-negotiated by the Federal government with the many provinces in Canada. This means provincial nominees might be subject to LMIA provisions in the future. 

· Intra-Company Transferees

Foreign workers who have worked for a parent, subsidiary, branch of a Canadian company abroad and who will be coming to work in Canada in a specialized knowledge or managerial position are exempt from labor market opinion. 

· Participants in Programs such as IEC and the Working Holiday Visa Program.

· Ph.D. students at a Canadian University Pursuing a Post-Doctoral Fellowship 

The exemption is available not just to Ph.D. students who have studied at a Canadian University and have been awarded a post-doctoral degree but also to those who are pursuing a post-doctoral degree at the approved university. 

· Co-Op Students 

If an internship or work placement is part of the field of study, the foreign student will be exempt from obtaining a labor market opinion.

· Religious Workers 

Foreign workers who are working for a religious institutions or charitable organizations in Canada are also exempt. 

· Common-Law Partners and Spouses of Foreign Students (full-time) are Eligible for Open Work Permits.

The category also applies to common-law partners and spouses of Canadians sponsoring them in Canada. Approval of a Canadian sponsor is necessary. 

One of the important things that you need to remember is that even though you may be exempt from LMIA provisions it doesn’t mean you don’t need a work permit. All categories on the LMIA list will require a work permit to legally work in Canada. 

Qualifying Relationship of the Canadian and Foreign Employer 

The foreign and Canadian entities should be legal entities that have a parent, affiliate, branch, or subsidiary business relationship. Both foreign and Canadian companies must be doing business. 

The qualifying relationship will remain if the foreign and Canadian entities continue to meet the definition of parent, affiliate, branch, or subsidiary companies. 

If the entities no longer meet the requirements then any foreign intra-company transferee working for the Canadian entity will not qualify to continue working for the new entity. 

If the qualifying relationship remains, the foreign intra-company transferees will be able to work for the new entity with their existing work permit. If there is a change in the entity and name then it should be reflected in the FOSS remarks and work permit renewal. 

Qualifying Relationship of the Employer and Foreign Worker 

The essential determining factor that establishes a qualifying relationship between the employer and foreign worker is the right of the employer to control and order the employee for their work performance. 

Even if the Canadian branch anticipates full-time employment, there is no requirement on the part of the foreign worker to perform full-time service in Canada. 

As an employer the evidence that they are a legal entity include evidence of registration with the CRA (Canada Revenue Agency), license to do business, partnership agreements, and articles of incorporation. 

Non-qualifying business relationships are based on the franchise agreements, licensing arrangements, and contracts. 

Apart from this affiliate relationship between the entities is also not created based on factors such as the formation of cartels or consortia or membership on boards of directors or franchising or licensing agreements or exchange of products or services or ownership of a small amount of stock in another company. 

An applicant who wants to open a new office on behalf of the foreign enterprise will be able to do so only after establishing that the entity in Canada will support an executive or managerial position with specialized knowledge when doing business. 

The other factors that should be considered include the viability of the foreign operation, the goods or services to be provided, the organizational structure, the investment commitment, the premises of the enterprise, and ownership or control of the enterprise.

Apart from this the financial stability of the business should also be considered. 

Intra Company Transferee – Qualifying Job Positions 

Executives and Senior Managers 

The group (as in NAFTA) includes persons in the managerial and senior executive positions. These persons are in possession of a letter from a company that conducts its business in Canada identifying them as an employee of a parent, affiliate, branch, or subsidiary of a company located outside Canada. 

The holder of the letter must be transferring to a managerial or senior executive level position at a continuing and permanent establishment of that company in Canada for a temporary period. 

Functional Managers 

In the context of the intra-company transferee, functional managers manage an essential aspect of the company. Managing staff is not an essential function of the functional manager. 

The functional manager usually operates at a senior level in the organization. The function that the manager manages is often an essential function of the company. The persons who are excluded from the category are those in the junior management level. 

Managerial sounding titles such as foreman, supervisor, and managing supervisor will also not qualify in this category. A functional manager need not necessarily perform tasks such as the delivery of a service or production of a product. 

Specialized Knowledge Workers 

A specialized knowledge employee or worker must possess “proprietary knowledge of the company’s management, service, product, research, techniques or equipment” and “advanced level of expertise and knowledge”. 

The intra-company transferee is required to demonstrate specialized knowledge on a balance of probabilities. Apart from this, they should also have advanced expertise and a high degree of proprietary knowledge. Advanced expertise or proprietary knowledge alone will not qualify a person as one with specialized knowledge. 

Proprietary knowledge is specific expertise that is related to a company’s service or product. It means that the company has not revealed specifications that will allow other companies to duplicate the service or product. 

Advanced proprietary knowledge implies that the applicant demonstrates an uncommon knowledge of the company’s services or product. The applicant has an advanced level of knowledge and expertise of the company’s procedures and processes such as management or techniques, equipment, research, and production. 

An advanced level of expertise is also required. This will require specialized knowledge that is gained through recent and significant experience with the organization. Specialized knowledge is used by the applicant to increase the productivity of the employer. 

If the processing officer is not satisfied that the applicant has specialized knowledge then they will be refused exemption under the LMIA provisions. 

Duration of Work Permits

The initial work permit is for a duration of one year. If you want the work permit to be renewed, the evidence is to be provided that the qualifying relationship still exists with the Canadian and foreign companies. 

The other evidence that should be provided for a work permit renewal is proof that the new office has been staffed and that the new office is engaging in continuous provision of services and good for the past year. 

Duration of Work Permit Limit for Intra Company Transferee

The maximum work permit limit duration for intra-company transferee is:

· Seven years for senior managers and executives.

· Five years for specialized knowledge workers.

If the applicant wishes to reapply as intra-company transferee they should work full-time outside Canada. This requirement also exists in NAFTA. 

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