By Sergio R. Karas, B.A., J.D. (Certified Specialist in Canadian Citizenship and Immigration Law by the Law Society of Upper Canada)
Multinational employers who wish to transfer certain types of employees for assignments in Canada can usually take advantage of the provisions related to Intra-Company Transferees. The Immigration and Refugee Protection Act (IRPA) regulations provide an exemption from a Labour Market Opinion (LMO) to Senior Managers, Executives, and Specialized Knowledge workers being transferred between branches, divisions, or subsidiaries, of companies under common control. The Intra-Company Transferee category was created to permit international companies to temporarily transfer qualified employees to Canada for the purposes of improving management effectiveness, expanding Canadian exports, and enhancing the competitiveness of Canadian entities in overseas markets. The IRPA regulations provide authority for the entry of Intra-Company Transferees, in addition to the NAFTA and other international treaties which contain similar provisions.
“Specialized Knowledge” is generally defined as a very high level of knowledge of a company’s product or service, or, an advanced level of knowledge or expertise in the organization’s processes and procedures. In some cases, individuals who possess Specialized Knowledge have been instrumental in the creation or development of a specific product, software or process, and in others, they may have a very intimate knowledge of the company’s international operations.
Prior to the end of 2010, many individuals who did not necessarily qualify as Specialized Knowledge workers could nonetheless receive Work Permits exempt from a LMO under other immigration facilitation programs such as the Information Technology Workers Program, which has been recently discontinued. With some of the facilitation programs cancelled by Citizenship and Immigration Canada, many workers sought to enter under the Specialized Knowledge category as an alternate route, but were unsuccessful in doing so. Many applicants did not possess the required qualifications, experience or earned an appropriate level salary.
In response to concerns about inconsistency in the decision making process at Ports of Entry and Visa Posts abroad, Citizenship and Immigration Canada recently published Operation Bulletin 316 summarizing the criteria to be followed by decision makers when assessing Specialized Knowledge applicants. In considering whether an applicant qualifies as a Specialized Knowledge worker, officers must assess a number of factors to determine if the application qualifies under the new criteria. These factors include:
(1) Education – is a diploma or degree required for the position sought?
While not a determinative factor, possessing a degree, diploma, or certificate relevant to the occupation may be a good indication that the employee possess the appropriate level of knowledge and training for the position. It must be noted, however, that many Specialized Knowledge workers have acquired “hands on” experience and do not necessarily have a degree.
(2) Knowledge – is it relatively unique within the company and industry in that it is not commonly held?
In general terms, it is considered that individuals who hold knowledge that is unusual and different from that generally found in a particular industry and sufficiently uncommon may possess Specialized Knowledge, particularly when they occupy a position that is of critical importance to the enterprise. The knowledge may not be of a proprietary nature, but if it relates to a product or process that is patented, it can also be a good indicator of “Specialized Knowledge”. As a general rule, Specialized Knowledge may mean thorough and intimate familiarity with a product, process, or service which no other company makes or that other companies make but differently. For example, a scientist who is involved in the production of a particular drug may possess specialized knowledge even though a similar drug is manufactured by a competitor. Similarly, an applicant could have knowledge of a particular business process or method of operation that are unusual and has some complexity, meaning that it cannot be easily transferred to another individual in the short term. Specialized Knowledge would normally be gained by experience with the organization and used by the individual to contribute significantly to the employer’s productivity or wellbeing. Some characteristics of workers who have Specialized Knowledge are:
- Possesses knowledge that is valuable to the employer’s competitiveness in the market place;
- Uniquely qualified to contribute to the Canadian employer’s knowledge of foreign operating conditions;
- Knowledge has been gained through extensive prior experience with the employer;
- Has been utilized as a key employee abroad in significant assignments which have enhanced the employer’s productivity, competitiveness, image, or financial position.
The test to be applied is whether the applicant possesses such knowledge and not whether it exists in Canada.
Advanced knowledge is complex or high level knowledge, not necessarily unique or known by only a few individuals, or even proprietary, but knowledge that will require a specific background or extensive experience with the employer who is transferring the worker, or experience from within the same industry. The person may possess key knowledge which enables them to contribute to the Canadian office’s ability to operate competitively.
(3) Experience – does the experience with the foreign company or the respective industry support the claim of specialized knowledge?
The number of years of experience that a person possesses in a specialized field is typically a good indicator of Specialized Knowledge. The experience need not be with the same employer, but it can be within the same industry. The longer the experience, the more likely the knowledge is indeed “specialized”. In some cases, however, a foreign worker may only have one year of experience with the company, or even in the industry, but it may have a considerable wealth of knowledge in the field (i.e. a PhD in a relevant specialty, or a particular skill that can be demonstrated or verified). Studies in a relevant area can also be a substitute for experience.
(4) Salary – is the salary realistic in terms of Canadian wage levels for the occupation concerned?
In some cases, employees who may possess Specialized Knowledge but are not sufficiently senior, are not highly compensated. In addition, current economic conditions have resulted in many employees not being able to command high salaries in many specialties or industries. Salary is one of the indicators that can be used to determine if the employee possess Specialized Knowledge, but it should not be considered in isolation.
(5) Relevant training – does any previous training support the claim to specialized knowledge?
Many candidates do not have degrees but possess in-house or industry training that may be very difficult to impart outside of their specialty.
(6) Supporting documentation – do the resume, reference letters, and other documents support the claim?
It is extremely important that all applications be thoroughly documented given the increasing scrutiny to which they are subject.
It must be noted that, officers have been instructed to determine whether the occupation level in the parent company is similar to that in the position sought by the Specialized Knowledge worker in Canada. Salaries must be realistic in terms of Canadian wage levels for the occupation concerned. A low salary may be considered to be a red flag. Non-cash allowances or per diems such as hotel and transportation paid by the employer are not to be included in the calculation of the overall salary and are not acceptable for the purposes of claiming that a worker possesses Specialized Knowledge. Further, officers are directed to compare salaries against the Human Resources and Skills Development Canada guide, which contains the average salaries for a specified geographical location (www.labourmarketinformation.ca).
Given the complexity of the Specialized Knowledge category, employers are encouraged to seek the appropriate legal advice prior to attempting to transfer any foreign workers to Canada.