Global Directions: Mobility Trends In August 2019

CANADA

Intra-Company Transfer Rules Updated

Immigration, Refugees and Citizenship Canada (IRCC) recently provided guidance to its field officers on eligibility criteria for Intra-Company Transfer (ICT) work permits. The guidance pertains to the legal bases for ICT applications, recapturing time to extend status, startup enterprises, and using an ICT to work on short-term projects. The updates are as follows:

Regulatory-Based vs. FTA Intra-Company Transfer Applications: ICT applications can be processed under general immigration regulations, and some are processed under applicable Free Trade Agreements (FTAs) including NAFTA, the Canada-European Union Free Trade Agreement (CETA), and the Comprehensive and Progressive Free Trade Agreement (CPTPP). The terms of an ICT work permit issued pursuant to a particular free trade agreement may not necessarily align with the general provisions of the ICT work permit category. For example, ICT work permits issued pursuant to the Canada-Peru Free Trade Agreement allows for ICTs after only six months of employment with a foreign affiliate, and it also allows for consideration of Peruvian permanent residents (rather than on the basis of Peruvian citizenship). Recapture of Time: ICTs are issued for a maximum of five years for specialized workers and seven years for managerial workers. Time beyond the statutory limit may be recaptured if evidence is presented that part of the time was spent not working. IRCC's new guidance now states that recapture will not be considered for any time period of less than 30 consecutive days. Startups: ICTs are typically granted for companies that have an established business in Canada. ICTs can be granted for startup enterprises, provided adequate documentation and information are submitted. Where the transferee will be working in a specialized position, the business must already have a physical premises in Canada. However, allowance is made for managerial-level employees who may be coming to Canada to start a business operation and therefore may be tasked with finding premises. In addition, the transfer of executives/managers must be supported by evidence that the business is large enough to support such functions. Individuals who meet the criteria for a specialized knowledge worker must be directed by management at the Canadian operation. Initial work permits for startups are granted for one year. To be eligible for an extension, the company must demonstrate that it has engaged in the continuous provision of goods or services for the prior year and that the new office has been staffed. Multiple Short-Term Projects/"Parachuting": IRCC has indicated that a foreign company with a project or projects in...

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