ARCHIVED – Operational Bulletin 575 – June 9, 2014
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Expanded Guidelines for Officers Assessing Work Permit Applications for Intra-Company Transferees with Specialized Knowledge
This Operational Bulletin (OB) provides expanded guidance to officers who process work permit applications for Intra-Company Transferees (ICTs) applying under the Specialized Knowledge Labour Market Opinion (LMO) Exemption category. The assessment criteria will now include a more rigorous definition of “specialized knowledge” as well as a mandatory wage requirement for some ICTs. Officers will continue to consider other aspects of Specialized Knowledge as outlined in Citizenship and Immigration Canada (CIC) operational manuals.
These new guidelines are effective immediately. Work permit applications for Specialized Knowledge ICTs received from this date forward will be assessed as per the standards and new guidelines contained in this OB.
As announced in the 2012–2013 Economic Action Plan, the Government’s objective is to better align the Temporary Foreign Worker Program (TFWP) with labour market demands and ensure employers look to the domestic labour force as a priority before seeking Temporary Foreign Workers (TFWs) to fill temporary labour or skills shortages.
The LMO-exempt component of the TFWP permits the issuance of work permits without the requirement of a labour market test in recognition of the broader benefit to Canada. The Economic Action Plan 2014 (EAP 2014) stated the Government would introduce reforms to the LMO-exempt streams of the TFWP to ensure the program continues to promote Canada’s economic interests.
One of the LMO-exempt streams is for ICTs. Canada facilitates the entry of set categories of ICTs to permit international companies to improve management effectiveness, expand Canadian exports, and enhance competitiveness in overseas markets. One of the categories is “specialized knowledge” ICTs.
As part of the efforts to fulfill the objectives of EAP 2014, the Government is strengthening the assessment of ICTs entering Canada under the Specialized Knowledge category to ensure the program is used as intended.
Effective immediately, officers will use the following assessment criteria when processing LMO-exempt work permit applications for Specialized Knowledge ICTs, to determine whether a foreign worker possesses a high standard of specialized knowledge and to ensure the wage they are given is consistent with the Canadian prevailing wage. [Note that this policy with respect to wage does not apply to Specialized Knowledge ICTs entering Canada pursuant to the North American Free Trade Agreement (NAFTA) or to any future or current Free Trade Agreements (FTAs) with coverage of LMO-Exempt Specialized Knowledge ICTs, once in force.]
I. Definition of “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 and to meet the requirements of Canada’s commitment in the GATS, an 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. 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), and a detailed description of the work to be performed in Canada.
Certain bilateral agreements contain variations of the above definition of “specialized knowledge” which should be respected, while ensuring applicants in fact possess specialized knowledge. Officers assessing applicants from Colombia and Peru, in particular, should consult the TFW manual for additional detail on the definitions of “specialized knowledge” captured in Canada’s free trade agreements 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 significantFootnote 1 and recentFootnote 2 experience with the organisation 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;
- 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.
Additionally, officers consider the following about the nature of the employment:
- ICT Specialized Knowledge workers must be clearly employed by, and under the direct and continuous supervision of, the host company;
- given the nature of specialized knowledge, the worker will not normally require training at the host company related to the area of expertise; and
- as the specialized knowledge will not be readily available within the Canadian labour market, and cannot readily be transferred to another individual, a Specialized Knowledge worker must not receive specialized training by other employees such that this would lead to the displacement of Canadian workers.
II. Mandatory Wage Floor
If a worker possesses the high standard of specialized knowledge that is uncommon in a particular industry as described above, then the salary or wage should be consistent with such a specialist. Such a specialist would typically receive an above average salary; therefore, a wage floor set at prevailing wage levels will establish a baseline for the assessment of an application.
Note: Non-cash per diems (for example, hotel, transportation paid for by the employer) are not to be included in the calculation of the overall salary or wage. Only allowances compensated in monetary form and paid directly to the employee are to be included.
Officers will determine the Canadian prevailing wage for the specific occupation and region of work by using Employment and Skills Development Canada (ESDC) “Working in Canada” website’s tool to determine prevailing Canadian wage.
As noted above, the policy with respect to a mandatory wage does not apply to Specialized Knowledge ICTs entering Canada pursuant to the NAFTA or to any future or current FTAs with coverage of LMO-exempt Specialized Knowledge ICTs, once in force. Nevertheless, with regard to applications pursuant to FTAs, wage remains an important indicator of specialized knowledge and should be taken into account as an important factor in an officer's overall assessment.
If the officer is not satisfied that the applicant is eligible for the “Specialized Knowledge” LMO exemption category, his/her application should be refused as per the regular refusal procedures. For those clients who require an LMO, they 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., LMO) before a work permit can be issued to you. Your employer in Canada should contact the local office of Employment and Skills Development Canada to begin this process.
Temporary Foreign Worker Guidelines
Instructions will be updated with these new guidelines and requirements.
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