Recently Sergio Karas of Canadian immigration law firm Karas & Associates wrote an assessment of these changes and how they will affect workers as well as employers. Karas notes that the Operational Bulletin makes it more difficult to use an exemption for the Labour Market Opinion process, since it now requires a higher threshold of advanced proprietary knowledge in order to qualify.
“Following the federal government scrutiny of the Temporary Foreign Worker Program, applicants and their counsel have increasingly looked at ways to bring to Canada temporary foreign workers avoiding the cumbersome LMO process,” Karas wrote. “One of the ways in which this is often done is by using the Intra-Company Transferee category, which allows the transfer of senior managerial and executive personnel as well as specialized knowledge workers who comply with the prescribed criteria, and are performing services for an employer in Canada that is a related entity to their employer abroad.”
In order to meet the new policy’s requirements, intra-company transferee specialized knowledge applicants must demonstrate a high balance of proprietary knowledge as well as advanced expertise, since one or the other alone does not qualify the applicant under this exemption. Evidence of this may include reference letters, employer letter of support, job descriptions outlining the level of training, a resume, or relevant degrees or certifications.
Advanced levels of expertise are assessed by:
- Unusual and different abilities that cannot be easily transferred to another individual in the short term;
- Unusual knowledge or expertise both within the industry and the host firm;
- Proprietary knowledge that is critical to the business of the Canadian branch;
- Proprietary knowledge that is unlikely to be available in the Canadian labour market.
“It must be noted that skill in implementing an off-the-shelf product would not, by itself be considered to be specialized knowledge unless the product has suffered significant modifications to the point that it has become quite unique,” Karas wrote. “So, for example, if an individual is very skilled at customizing a commonly available computer program that, by itself, would not be sufficient to qualify the person as a specialized knowledge worker. However, if the product is combined with other products to achieve a customized and unique solution that is proprietary to the employer, that may be considered as a qualifying degree of expertise.”
In June, the Canadian government published Operational Bulletin 575, which expanded guidelines for immigration officers who are assessing work permit applications for intra-company transferees with specialized knowledge and provided direction to the officers in terms of evaluating the criteria under which work permits were issued to these transferees.