Written by William R. Hummel, Esq., Partner, N.C. Board Certified Immigration Law Specialist.
The Canadian government issued new rules in early October related to Intra-Company Transferee (ICT) permits, the most common work permit category used to relocate employees to the country.
The rules took effect immediately on Oct. 3 and will likely mean that ICT permits will face greater scrutiny moving forward, with remote work generally not permitted. These new rules also appear to apply to those seeking extensions of ICT permits.
The major changes include:
Significant benefit to Canada requirements
Applicants for ICT permits must now demonstrate that their presence in Canada will directly result in “significant social, cultural or economic benefits, or opportunities” for the country’s citizens or permanent residents. This means applicants will need to submit supporting documentation that shows their work meets that criteria, under the new guidelines.
Specialized knowledge guidance: Updates and revisions
The way in which “specialized knowledge” is assessed and adjudicated by the Canadian government was revised in the updated guidance. For instance:
- Previously, an applicant with less than a year of experience with a foreign enterprise had the potential to be considered a knowledge worker, under the right set of circumstances. The current language only refers to an applicant having less than two years of experience with the applicable foreign entity. This appears to imply that if the applicant has less than two years of work experience with the foreign entity abroad, they may face a difficult time qualifying as a specialized knowledge worker.
- A foreign national who possesses specialized knowledge is expected to make “above average” compensation in their home country, according to the guidance. This suggests that officers may consider the applicant’s compensation abroad when assessing specialized knowledge.
Position with foreign entity must remain available
Foreign nationals are now required to prove that their position with their foreign employer will remain available to them throughout their period of time in Canada. They must be able to return to their position abroad once their time in Canada ends.
Alternative ICT category work permit category restrictions
The applicant must be transferred to a similar role to the position they held with the foreign employer. Therefore, if they are employed in their home country as a specialized knowledge worker, they must hold a “specialized knowledge” role in Canada: they cannot take on a different role, such as a managerial position (which is very different than the L-1A visa in the United States, for example).
The revised guidance indicates that the position which must remain available to the foreign national while they are abroad (as mentioned above) must continue to be similar to the position they hold in Canada.
ICT work permit: Location of employment and physical premises requirement
The revised guidance notes that:
“If the work of the foreign national can be completed remotely, a reasonable business explanation of why the foreign national must be in Canada would be required. A time difference between Canada and the foreign national’s location or a personal request from the employee to be in Canada would not be a justifiable reason for a transfer.”
Foreign nationals with an ICT permit must work at the physical location where business is conducted in Canada, under the new guidance. ICTs will not be allowed to work 100 percent remotely. It is still unclear whether this change will impact ICT permit holders who are hybrid. The attorneys at Garfinkel Immigration Law Firm continue to monitor the situation closely and will alert clients if more information becomes available.
Businesses cannot hire ICTs in Canada if they do not have a physical “commercial” location (such as businesses operating from residential locations, virtual businesses using a physical mailing address, etc.).
The above is not a complete list of changes made to the Canadian ICT program in the new guidance. Please contact the attorneys at Garfinkel Immigration Law Firm to learn more about the updated rules, or to discuss specific situations.