On November 10, 2009, Citizenship and Immigration Canada (“CIC”) amended its Foreign Worker Manual (“FWM”) to impose additional restrictions on intracompany transferees (Exemption Code C12) who enter Canada to work for start-up businesses. Under Subsection 205(a) of the Immigration and Refugee Protection Regulations, international companies may temporarily transfer qualified employees from their foreign offices to their Canadian facilities as intracompany transferees. This exemption is considered the Canadian equivalent of the L-1 nonimmigrant classification in the United States.
According to the FWM, where the Canadian employer is a “start-up company,” it will be expected to:
- Secure physical premises to house the Canadian operation;
- Furnish realistic plans to staff the new operation; and
- Have the financial ability to commence business in Canada and compensate employees.
This essentially mirrors the requirements imposed on “new office” L-1 petitions in the United States. Although the phrase “start-up company” has not been defined, these requirements were clearly derived from United States immigration laws; it is therefore helpful to consider the meaning of “new office” within the context of the L-1 category in the United States. Under U.S. law, the phrase “new office” means a business that has been doing business for less than one year.
In addition to the above, the following requirements must also be established:
- Executives/managers: The company must demonstrate that it will be large enough to support the executive or management function.
- Specialized Knowledge: The company must demonstrate that it is expected to be doing business and the work must be guided and directed by management at the Canadian operation.
The requirement that the specialized knowledge worker be guided and directed by management at the Canadian operation appears to be stricter than the L-1B category in the United States, since it is possible to send L-1B workers to a new office in the United States without already having managerial personnel in place. The FWM suggests that a specialized knowledge worker will not be permitted to enter to work for a start-up operation in Canada unless a Canadian manager is already in place or an executive or manager is also transferring to the start-up company.
Work permits granted to intracompany transferees working at start-up operations in Canada are limited to an initial term of one year. The same limitation applies to new office L-1 petitions in the United States.
In order for the foreign national to obtain a renewal of their intracompany transferee work permit after the first year, he or she must provide evidence that:
- The Canadian and foreign companies still have a qualifying relationship;
- The new office has engaged in the continuous provision of goods or services for the past year; and
- The new office has been staffed;