Proving ‘Specialized Knowledge' Just Got Harder for Intra-Company Transferees 

publication 

June 2014

Business Immigration Bulletin
In keeping with its objective of ensuring Canadian employers look to the domestic work force as a priority, the Government of Canada has released stringent guidelines for immigration and border officers to assess a work permit application from a foreign worker seeking to qualify as a "Specialized Knowledge Worker".

By way of background, a Canadian employer seeking to hire an intra-company transferee (ICT) from abroad is exempted from first having to test the Canadian labour market by recruiting within Canada and applying for a Labour Market Opinion, if the transferee is an executive or senior manager, or is a specialized knowledge worker. Operational Bulletin 575 was issued on June 9, 2014 to provide expanded assessment guidelines for determining who qualifies under the specialized knowledge category. Effective immediately, the assessment criteria now include a more onerous definition of "specialized knowledge", as well as a mandatory wage requirement for ICTs (other than, it appears, ICTs under NAFTA and other bilateral trade agreements).

A.    Definition of "Specialized Knowledge"

An ICT Specialized Knowledge Worker must possess (i) knowledge at an advanced level of expertise and (ii) advanced proprietary knowledge of the company's product, service, research, equipment, techniques or management. This definition has been expanded further as follows:

Proprietary knowledge is company-specific expertise related to a company's product or services.

Advanced proprietary knowledge is 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.

Advanced level of expertise requires specialized knowledge gained through significant and recent (within the last five years) experience with the organization, used by the individual to contribute significantly to the employer's productivity.

B.    Assessment of Expertise and Knowledge

In assessing such expertise or knowledge, officers must consider whether:

  • the applicant's abilities, knowledge or expertise are highly unusual and different from those generally found in a particular industry, cannot easily be transferred to another individual in the short-term and are not likely available in the Canadian labour market

  • the knowledge or expertise is critical to the business of the Canadian employer and a significant disruption of business would occur without the applicant's expertise

  • the proprietary knowledge of a particular business process or method of operation is unusual and not widespread across the organization.

Unique and uncommon are two adjectives that will colour an officer's decision making process. By its very definition specialized knowledge will be held by only a small percentage of employees within an organization. In other words, foreign workers applying under the Specialized Knowledge category must show that they are key personnel and not simply highly skilled.

C.    Mandatory Wage Floor

If a worker possesses the high standard of specialized knowledge uncommon in a particular industry, it would be expected that the person would typically receive an above average salary. Therefore, a wage floor set at prevailing wage levels for the occupation and region of work will be used to establish a baseline for the assessment of an application. Non-cash per diems such as lodging and transportation paid by the employer will not be considered in determining if the worker meets the overall salary threshold. Only allowances paid directly to the worker will be considered.

This wage floor does not apply in the case of specialized knowledge workers entering Canada under the terms of a bilateral trade agreement such as NAFTA.

D.    Compelling Argument Necessary to Show Specialized Knowledge

Foreign workers can now expect increased challenges in applying for an ICT work permit under the Specialized Knowledge category. While a letter of support from the Canadian employer will continue to be required, an applicant in this category should also be prepared to produce any or all of the following: a resume, a detailed description of his/her experience and years in the field and the work to be performed in Canada, documents related to degrees or certifications, publications and awards and reference letters.

While it appears that these new guidelines are not to affect ICT applications under NAFTA and other bilateral trade agreements that contain their own definitions of specialized knowledge, officers must still scrupulously assess whether the applicant in fact possesses specialized knowledge under these agreements. As a practical matter we expect these guidelines to colour an officer's view as to who qualifies under NAFTA.

As such, it is advisable that an employer contact us for tips on how to assist an eligible foreign worker to succeed with a work permit application under the ICT Specialized Knowledge exemption.

by David Elenbaas and Ruba El-Sayegh

a cautionary note

The foregoing provides only an overview and does not constitute legal advice. Readers are cautioned against making any decisions based on this material alone. Rather, specific legal advice should be obtained.

© McMillan LLP 2015