CANADIAN GOVERNMENT PROVIDES CLARIFICATION ON ASSESSMENT CRITERIA FOR SPECIALIZED KNOWLEDGE INTRA-COMPANY TRANSFEREES

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Created on Friday, 08 July 2011 18:31

On July 4, 2011, Citizenship and Immigration Canada released a new operational bulletin, providing further clarification and guidelines in the assessment of work permit applications under the Intra-Company Transfer (Specialized Knowledge) category.

Background

With the cancellation of the software development (IT) workers pilot program in September 2010, Citizenship and Immigration Canada has reported a significant increase in the number of work permit applications submitted under the Intra-Company Transfer – specialized knowledge category at visa posts and offices around the world. In order to ensure that all visa posts are processing this type of application consistently, CIC has released an operational bulletin to provide clarification on the assessment criteria for intra-company transferees and the role of salaries and wages in particular.

Assessing Specialized Knowledge

When assessing a specialized knowledge worker, all immigration officers are instructed to consider a number of factors to determine if the application supports the claim of specialized knowledge. These factors include:

• Education – is a diploma or degree required for the position sought?
• Knowledge – is it relatively unique within the company and industry in that it is not commonly held?
• Experience – does the experience with the foreign company/the respective industry support the claim of specialized knowledge?
• Salary – is the salary realistic in terms of Canadian wage levels for the occupation concerned?
• Relevant training – does any previous training support the claim to specialized knowledge?
• Supporting documentation – do the resume, reference letters, etc. support the claim?

It is normally not sufficient for a worker to simply have knowledge of the proprietary tools used or developed by the employer. A specialized knowledge worker would normally possess the following characteristics:

• knowledge that is uncommon (i.e., beyond that generally found in a particular industry and within the company);
• knowledge that has been gained through extensive experience and is difficult to acquire in a short period of time;
• difficulty to train another worker to assume such duties;
• the required knowledge is complex in that it cannot be easily transferred;
• a person possessing such knowledge would be in a position that is critical to the well-being or productivity of the Canadian employer.

Occupation

Officers are instructed to use the National Occupational Classification (NOC) system to evaluate the categorization of the job based on the main duties the foreign worker is expected to perform in Canada. The position to foreign worker is expected to occupy in Canada must be of a NOC level that is similar to the applicant’s home position or higher, unless the applicant is able to satisfy the visa officer that an exceptional situation exists. In conjunction with the foreign worker’s knowledge, education and experience, the NOC will also be used to determine the appropriate wage.

Salary/Wage Requirements

In order to qualify under the Intra-Company Transfer (Specialized Knowledge) category, foreign workers must show that the salaries they will be paid while working in Canada are realistic in terms of Canadian wage-levels for the occupation concerned. Immigration officers will specifically look to see that the salaries of specialized knowledge workers in Canada are consistent with the average wage for the stated occupation in the specified geographical location while working in Canada.

CIC has also confirmed with this bulletin that non-cash per diems (such as provision of meals, transportation, accommodation, etc. paid for by the employer) will not be considered in the calculation of a worker’s salary in Canada. Only allowances compensated in monetary form and paid directly to the employee are to be included.

Recommendation

In filing any intra-company transfer application for a specialized knowledge worker, it is strongly recommended to provide as much documentation as possible to confirm the applicant’s specialized knowledge, including copies of education and training certificates, as well as proof of wages. Where a per diem is being paid to supplement wages, they should be paid directly to the employee, rather than in the form of pre-arranged accommodation, meals, etc. As specialized knowledge has also been clarified to be that which takes extensive experience to obtain, and which cannot be learned in a short period of time, applications from candidates with many years of experience in the field or industry will likely have a greater chance of success.