International Mobility Program: Canadian interests – Significant benefit – Intra-company transferees – Qualifying relationship between the Canadian and foreign employer [R205(a)]

The Canadian and foreign enterprises must be legal entities that have a parent, subsidiary, branch or affiliate business relationship. Both the 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, as the case may be. It does not include the mere presence of an agent or office in Canada. For instance, a company with no employees which exists in name only and is established for the sole purpose of facilitating the entry of intra-company transferees would not qualify. (See the glossary for an explanation of terminology.) 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 which 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 of possession with full power and authority to control. Control means the right and authority to direct management and operations of the entity.

Definitions of enterprise, parent and subsidiary, branch and affiliate are the same as in NAFTA (See glossary).

For guidelines on mergers and acquisitions, including sample employer information to assist officers in cases of change of employer’s name, see the guide to mergers and acquisitions.

The focus for intra-company transferees in the event of a merger or acquisition is establishing that a qualifying relationship remains, even though there have been changes in ownership. The onus is on the applicant to provide evidence that this is the case.

A qualifying relationship remains if the Canadian and foreign entities continue to meet the definition of parent, subsidiary, affiliated or branch companies. If the entities no longer meet the requirements for these relationships, then any foreign intra-company transferee currently working for the Canadian entity would not qualify to continue working for the new entity.

If the qualifying relationship remains, foreign intra-company transferees may continue to work for the new entity on the strength of their existing work permit. Where there is a change in the name and entity, this should be reflected on any work permit renewal and in FOSS remarks. There may be implications for other federal and provincial/territorial partner agencies, such as the Canadian Revenue Agency or Service Canada. The source of the foreign national’s salary and benefits is not a factor to be taken into consideration.