CANADIAN IMMIGRATION: INTRACOMPANY TRANSFEREE WORK PERMITS

BACKGROUND

Intracompany transferees are executive, managerial or specialized knowledge employees of foreign businesses or professional organizations who are transferred to Canada to work for a Canadian organization.

Work Permits for Intracompany Transferees are available under the provisions of Canada’s Immigration and Refugee Protection Act (IRPA), and also under various international agreements that Canada is a party to: the North American Free Trade Act (NAFTA), the Canada-Chile Free Trade Act (CCFTA) and the General Agreement on Trade in Services (GATS). The vast majority of Intracompany Transferees are processed under either the IRPA or NAFTA rules.

GENERAL REQUIREMENTS

1. Existence of a parent, subsidiary, branch or affiliate relationship. There must be a parent, subsidiary, branch or affiliate relationship between the foreign and Canadian organizations. Corporate relationships which are based on contractual, licensing or franchise arrangements, and joint ventures where the relationship is less than 50-50, will be considered to be “non-qualifying” relationships and employees of the foreign organization will not be eligible to obtain Intracompany Transferee Work Permits.
2. The foreign and Canadian organizations must be actively engaged in doing business. Both organizations must be subsisting, legally recognized corporate or professional entities which are in the business of regularly, systematically, and continuously providing goods or services.
3. Employer-employee relationship. The relationship between the employer and the employee must be a true employer-employee relationship with all of the usual incidents which characterize this type of relationship. This applies to the relationship that the employee has with both the foreign organization and the Canadian organization. For example: the employee must be a permanent employee of the organization; the employer must have the right to control and supervise the employee in the work place; and, the employer must have the right to hire, fire and discipline the employee. The effect of this is that someone who works for the foreign organization as an independent consultant or contractor, or someone whose services are supplied to the employer by a third party, will not be eligible to obtain a Work Permit as an Intra Company-Transferee.
4. Employee must occupy an Executive or Managerial-level position or must be a Specialized Knowledge Worker. All of the various visa options discussed below require that the employee who is being transferred to Canada must have prior experience in an executive, managerial/senior managerial or specialized knowledge position with the foreign employer, and the transfer to Canada must result in the employee occupying a comparable senior-level position in the Canadian organization.

NOTE: US or Mexican citizens who do not meet these requirements may still be able to qualify as NAFTA Traders and Investors.

VISA OPTIONS

IRPA Intracompany Transferee Regulations (Immigration and Refugee Protection Act and Regulations)

Canada’s immigration law, the Immigration and Refugee Protection Act (IRPA), allows for the issuance of Work Permits to Intracompany Transferees. The IRPA Intracompany Transferee rules are similar to the NAFTA rules but with some subtle but important differences.

Eligibility. IRPA Intracompany Transferee Work Permits for entry to Canada are available to foreign workers of all nationalities. Applicants who are US or Mexican citizens, however, will be processed under the NAFTA rules discussed below. The applicant must be transferring from a foreign employer which is in a parent, subsidiary, affiliate or branch relationship with the Canadian organization. The applicant must have worked for the foreign employer for at least one year during the previous three years in a similar position to the one that he/she will be taking up in Canada. The applicant’s position in the Canadian organization must be at the executive, senior manager or specialized knowledge level. IRPA Intracompany Transferees are not required to physically relocate to Canada, but are subject to the “25% Rule” which requires them to spend at least 25% of the duration of their Work Permit in Canada.

Visa Processing. Applications for IRPA Work Permits must be processed at the Canadian visa office outside of Canada which serves the Applicant's country of residence or citizenship, unless the Applicant is a Visa Exempt Foreign National, in which case the application may be processed at the port of entry. Applicants who are not Visa Exempt Foreign Nationals must obtain a Temporary Resident Visa to travel to Canada.

Duration. IRPA Intracompany Transferee Work Permits may be issued for up to three years for executives and senior managers and for up to one year for specialized knowledge workers. Executive and senior level managers may renew their Work Permits and, unlike NAFTA, there is no total time cap for these individuals. Specialized knowledge workers may also have their Work Permits renewed for up to one year at a time, but are subject to a total time cap of three years.

Renewal applications may be processed from within Canada as long as the applicant is lawfully present in Canada.

NAFTA (North American Free Trade Agreement)

The North American Free Trade Agreement (NAFTA) is a trilateral agreement made between the governments of Canada, Mexico and the United States. Under NAFTA, the Canadian, Mexican and United States governments have agreed to facilitate the cross-border movement of their citizens so that they can engage in business, trade and investment activities and provide professional services and expertise within the NAFTA countries.

Eligibility. NAFTA Intracompany Transferee Work Permits for entry to Canada are available only to US or Mexican citizens. US green card holders, residents of US overseas territories and possessions, and Mexican residents are not eligible. NAFTA intra-company transferees must have been employed continuously for at least one year during the previous three years in an executive, managerial, or specialized knowledge position by a US or Mexican entity which is in a parent, subsidiary, affiliate or branch relationship with the Canadian organization.

Visa Processing. NAFTA Intracompany Transferee Work Permit applications may be processed at a visa office outside of Canada, at the Canadian port of entry, or, from within Canada if the applicant has previously entered Canada as a Visitor.

Duration. NAFTA Intracompany Transferee Work Permits may be issued for up to three years; however, this will only rarely occur. In practice, the initial Work Permit will normally be issued by the visa officer for a one year period. The Work Permit may be renewed for additional renewal terms of up to two years each. Work Permits issued to executives or managers are subject to a total time cap of seven years, while those issued to employees with specialized knowledge are subject to a total time cap of five years. Once the total time cap has expired, further renewals under the NAFTA rules for Intracompany Transferees will not be available, and an application for a Confirmed Work Permit will be required.

Renewal applications may be processed from within Canada as long as the applicant is lawfully present in Canada.

NOTE: See also NAFTA Traders and Investors

CCFTA (Canada-Chile Free Trade Agreement)

The Canada-Chile Free Trade Agreement is a bilateral agreement between Canada and Chile.

Eligibility. The Intracompany Transferee provisions of the CCFTA dealing with eligibility are virtually identical to those of the NAFTA, except for the fact that it applies only to Chilean citizens.

Visa Processing. Chilean nationals are required to obtain a Temporary Resident Visa in order to travel to Canada. As a result, both the Temporary Resident Visa and the CCFTA Intracompany Transferee Work Permit must be obtained from a Canadian visa office abroad prior to entering Canada.

Duration. The rules relating to duration under the CCFTA are similar to the NAFTA duration rules (see above). Renewal applications may be processed from within Canada as long as the applicant is lawfully present in Canada.

GATS (General Agreement on Trade in Services)

The General Agreement on Trade in Services (GATS) is an international agreement between more than 144 member countries which came into effect on January 1, 1995. GATS deals with international trade issues in the service sector. On the immigration side, GATS establishes a set of reciprocal rules which facilitate the temporary entry into member countries of business persons who are nationals of other Member Countries.

Under the GATS, foreign-based companies can transfer certain key personnel to their Canadian operations to conduct specified duties for a limited period of time. To qualify as a GATS Intracompany Transferee, the applicant must have been employed by a foreign employer in a member nation for a period of not less than one year in an executive, managerial or specialized knowledge capacity and must be entering Canada in order to perform work in one of these capacities. In addition, the Canadian employer and the foreign employer must have a parent, branch, subsidiary or affiliate relationship, and both employers must be engaged in substantive business operations.

NOTE: As a result of changes which were made to Canadian immigration laws in 2002, there is no longer any significant advantage to be gained in using GATS as the basis for an Intracompany Transferee Work Permit. In almost all cases, an application based on the IRPA rules will be the preferred approach.

READ MORE . . . about Temporary Resident Visas about Work Permit Exempt Activities about Work Permits about Confirmation Exempt Work Permits about Penalties for Failing to Obtain a Work Permit about Student Visas about Canadian Immigration Medical Examinations

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