Archive for July, 2012

CIC Updates Foreign Worker Manual Provisions Relating to Intracompany Transferees

Henry Chang | July 19, 2012 in Canadian Immigration | Comments (0)

Citizenship and Immigration Canada (“CIC”) recently updated its Foreign Worker Manual (“FWM”), which provides guidance to CIC and Canada Border Services Agency (“CBSA”) officers who adjudicate work permit applications. The updated version includes revisions to sections that describe the C12 (Section 5.31) and NAFTA (Appendix G, Sections 4.1 and 4.3) intracompany transferee (“ICT”) exemptions from the Labour Market Opinion requirement.

Both the C12 ICT and NAFTA ICT exemptions apply to executives, managers, and specialized knowledge workers who are transferring from one entity to another within the same multinational organization. The two ICT exemptions are essentially identical. However, the NAFTA ICT exemption applies to citizens of the United States and Mexico only, while the C12 ICT exemption applies to all nationalities.

The first change is a positive one. It clarifies that the foreign national must have worked outside Canada for a related entity of the Canadian employer for at least one year within the three years preceding the date of the initial work permit application. This was intended to address cases where the foreign national had already been working in Canada for at least three years.

Prior to the clarification, there was some uncertainty whether such a foreign national could seek an extension of his or her ICT work permit after the first three years, despite the fact that the maximum period of stay is seven years for executives/managers and five years for specialized knowledge workers. If the relevant three-year period preceded the date of foreign national’s current application rather than the date of the initial application, it would be impossible for any ICT to ever reach the maximum periods of stay allowed under these exemptions. The revision adopts the most logical interpretation.

Unfortunately, the second change is illogical and serves no purpose other than to inconvenience Canadian employers. The updated version of the FWM now states that the foreign national must be currently employed by the multinational organization that plans to transfer him or her to Canada.

CIC may be taking the position that a foreign national should not be considered an ICT unless they are actually transferring from the related foreign entity (i.e. employed by the related entity immediately prior to the transfer). However, this is an overly-mechanical interpretation and it violates established principles of NAFTA reciprocity.

Prior to the revision, a foreign national was only required to work outside Canada with the related entity for at least one year within the three years preceding the work permit application. In other words, the foreign national could have worked for the related foreign entity for one year during the previous three years but then have worked for an unrelated company during the year immediately prior to transferring to the Canadian employer. As long as the foreign national had at least one year of employment abroad with the related foreign entity during the three years prior to the application, he or she could still qualify as an ICT.

This has also been the longstanding position of United States Citizenship and Immigration Services and United States Customs & Border Protection when adjudicating ICT applications (known in the U.S. as L-1 petitions) filed on behalf of Canadian citizens. It is clear that the revision to the NAFTA ICT guidelines violates principles of reciprocity since the U.S. Government does not impose such a restriction on Canadians who apply as ICTs in the United States. Although principles of reciprocity do not necessarily apply to the C12 ICT exemption, given the fact that it was modelled after the NAFTA ICT exemption, it seems illogical to impose this requirement on C12 ICTs also.

Until this problem is resolved, multinational organizations can still satisfy the requirement by rehiring the foreign national abroad immediately before his or her transfer to the Canadian employer. However, this is an added inconvenience for such employers and serves no logical purpose.

CIC Announces Temporary Pause on Most Federal Skilled Worker Applications and All Federal Immigrant Investor Applications

Henry Chang | in Canadian Immigration | Comments (0)

On June 29, 2012, Citizenship and Immigration Canada (“CIC”) published Operational Bulletin 438 (“OB 438″), which provided guidance on the recently issued Ministerial Instructions that came into force on July 1, 2012.

OB 438 states that a temporary pause has been placed on new applications filed under the Federal Skilled Worker Program (“FSWP”), excluding applications received under the PhD eligibility stream and those with a qualifying offer of Arranged Employment (“AE”). The effective date of the temporary pause was July 1, 2012. As of that date, the only FSWP applications that will be accepted are those filed by:

  1. Skilled workers with a valid offer of arranged employment.
  2. International students enrolled in a PhD program at a provincially or territorially recognized private or public post-secondary educational institution in Canada who:
    • Have completed at least two years of study towards a PhD;
    • Are in good academic standing at the time they apply;
    • Are not recipients of an award requiring them to return to their home country to apply their knowledge and skills; OR

    International students who graduated from a PhD program at a provincially or territorially recognized private or public post-secondary educational institution in Canada who:

    • Graduated no more than 12 months before the date their application is received;
    • Did not receive an award which required them to return to their home country to apply their knowledge and skills (or did, but have satisfied the terms of the award).

A maximum of 1,000 applications from the PhD eligibility stream will be considered for processing each year. Applications will be considered in the order they are received.

The first cap year for the PhD stream began on November 5, 2011, and will end on October 31, 2012. Unless otherwise indicated in a future Ministerial Instruction, the cap will be automatically reset on November 1, 2012.

According to OB 438, a temporary pause has also been placed on new applications filed under the federal Immigrant Investor Program (“IIP”). Effective July 1, 2012, no new IIP applications will be accepted by CIC; there are no exceptions.

CIC Prohibits Work Permits for Businesses Related to the Sex Trade

Henry Chang | in Canadian Immigration | Comments (0)

On July 13, 2012, Citizenship and Immigration Canada (“CIC”) published Operational Bulletin 449 (“OB 449″). OB 449 provides guidance on recent Ministerial Instructions that prohibit the processing of work permit applications filed by temporary foreign workers who will be working in a sector where “there are reasonable grounds to suspect a risk of sexual exploitation of some workers.” The prohibition applies to all initial and extension applications filed on or after July 14, 2012.

For the purposes of the prohibition, strip clubs, escort services and massage parlours are considered businesses where there are reasonable grounds to suspect a risk of sexual exploitation. However, OB 449 advises officers not to refuse applications involving businesses where employees have qualifications and credentials that are regulated and certified by provincial authorities, such as massage therapy clinics.

The prohibition applies to all work permit applications where the applicant is destined to work for such a business, or to perform contract work for the business or on its premises (including on a self-employed basis), irrespective of the specific occupation that the applicant is intended to fill at that business. In addition, if a foreign national who will be working in the occupation of exotic dancer is destined to a bar or hotel that only has an exotic dance performance occasionally and would not normally be considered a “strip club,” the establishment would still be considered a “strip club” for the duration of the foreign national’s performance. In other words, such a business would also be subject to the prohibition.

Finally all open work permits (i.e. work permits that are not tied to a specific employer or occupation) will now have the following condition placed in the visible remarks section of the document:

Not valid for employment in businesses related to the sex trade such as strip clubs, massage parlours or escort services.

This condition informs the work permit holder that employment, self-employment, or contract services in this sector are not permissible.