The ICT work permit allows qualified foreigners to work legally in Canada, and potentially gain permanent residence
Paragraph 205(a) of the Immigration and Refugee Protection Regulations prescribes an international mobility program that authorizes intra-company transferees (ICTs) to obtain a work permit without the precondition of a Labour Market Impact Assessment (LMIA), although most Canadian work permits are tied to an LMIA.
A lengthy and painstaking process, the LMIA prerequisite sets a high bar for obtaining a work permit. However, pursuant to R205 (a), ICTs may apply for an LMIA-exempt work permit on the basis that they would “create or maintain significant social, cultural or economic benefits or opportunities for Canadian citizens or permanent residents.” The ICT work permit allows qualified foreign nationals to work legally in Canada, while potentially opening various permanent residency paths for them as well.
The uniqueness of the ICT work permit lies in the eligibility requirement for participating enterprises. Applicants must be current employees of a foreign multi-national company who want to transfer to a Canadian company possessing a qualified relationship with their employer. Company eligibility is, therefore, the foundation of this type of work permit. Without the support of such companies, applicants cannot obtain an ICT work permit.
Here are the requirements for both companies:
- Both must be legally established entities;
- Both must have the following association with one another: parent, subsidiary, branch, or affiliate;
- Both must be doing legitimate business actively and continuously;
- To further its Canadian operations, the foreign company must transfer qualified employees to its Canadian counterpart.
The above requirements are admittedly vague, and so they raise the following questions: How established do the companies need to be? What capabilities should they have? And what are the requirements for the Canadian companies?
It is true that the criteria for ICT enterprises are not itemized. However, R205 (a) does provide us with a clear principle, which is its core: transferees are permitted to enter Canada because they would bring significant benefit to the Canadian economy. Based on this logic, the foreign companies ought to be well established, and its Canadian counterpart should be able to financially support its business operations. The program requires transferees to have worked for the foreign company for at least one year during the last three. Setting aside the fact that this requirement is not mandatory, it is reasonable to expect that the foreign company has had a sound business history for at least the last three years.
The minimum establishment period for the Canadian company, as provided by Immigration, Refugee and Citizenship Canada (IRCC), is 18 to 24 months. Nevertheless, start-ups in Canada are not excluded from this program. In such cases, the start-ups must have adequate finances in order to hire and retain staff. Additionally, the company needs to demonstrate that the transferees are essential to its Canadian operations. Where the transferees are executives or senior managers, the company is required to show that it is large enough to require such management functions.
In short, enterprises seeking to transfer their employees to their Canadian counterparts should be well-operated organizations, and the ICTs’ entry to Canada should, ideally, create jobs for Canadians or permanent residents as well as development opportunities within Canada.
Criteria for Transferees
Three types of foreign workers may be eligible for the program: executives, senior managers, and workers with advanced specialized knowledge. Like all other temporary immigration programs, the transferees must comply with all immigration conditions for entry. They must also meet the following criteria:
- they have been working continuously on a full-time basis for their foreign employer for at least one year in the last three;
- the position offered to them in the Canadian entity should be similar to their current position; and
- they are coming to Canada temporarily.
Other than the above, specialist transferees must have specialized knowledge needed by the position in Canada.
Although at least one year of full-time work experience during the last three prior to the ICT work permit application is required, in some circumstances, part-time employees or employees with less than one year of employment with the foreign company may still be eligible ICTs. When assessing the part-time situation, IRCC will consider the following factors: employment history with the company, similarity of the position in Canada, and signs of program abuse. Moreover, the one-year requirement is deemed met in the context of a corporate acquisition or merger where the transferees’ employment with one of the affiliates meets this requirement, and the successor entity takes over the business of the transferees’ former employer.
ICT Work Permit Documentation Requirements
To apply for an ICT work permit, in addition to the general work permit documentation, evidence of the following is required:
- the relationship between the multi-national enterprise outside Canada and its Canadian entity;
- the applicant’s employment with the multi-national enterprise in the foreign country; and
- the applicant’s position at this foreign company.
Potential Permanent Residency Pathways
S.22 (2) of the Immigration and Refugee Protection Act allows for temporary residents to transition toward permanent residency. Therefore, the ICT work permit offers transferees a potential path to permanent residency.
Generally speaking, this is similar to international students, who come to Canada to study. Yet some of them successfully transition from student to permanent resident either through federal programs or various provincial nominee programs (PNPs). Both their study and post-graduation work experience in Canada contribute to their permanent residency application. As such, the Canadian work experience that transferees gain via their Canadian employment is invaluable for their path to permanent residency. If they are eligible to enter the Express Entry pool, their Canadian work experience adds points to their Comprehensive Ranking System score, which may put them in an advantageous position when competing against overseas foreign workers without such experience. Even if they are ineligible for federal programs due to limited language skills, PNPs, with their lower language level requirements, could still accommodate them. Although the ICT work permit benefits transferees with regards to permanent residency, it’s crucial to keep in mind that this is a temporary residency program. Applicants should thus approach the program in good faith. Obtaining an ICT work permit without significant benefit to Canada constitutes an abuse of the program, which will not be tolerated. For more information about the ICT work permit, visit IRCC’s website: International Mobility Program: Canadian interests - Significant benefit - Intra-company transferees.