IRCC (Immigration, Refugees and Citizenship Canada) has released notable changes impacting intra-company transfer (ICT) applications to Canada.

The new guidance is only applicable to countries which are not subject to Free Trade Agreements with Canada.

Notable changes to non-treaty country applications include:

The qualifying relationship between the foreign and Canadian company has been redefined. The foreign company must be a Multinational Corporation defined as having business operations in at least one (1) country other than its home country that generates revenue beyond its borders. For the purposes of an intra-company transfer work permit, the company outside of Canada cannot become a Multinational Corporation by establishing the first foreign company in Canada.

The proposed Canadian employer must have physical business premises where the transferee can work. The ICT foreign worker must be able to work at the Canadian employer’s physical commercial business premises where business operations are conducted. Guidance suggests that this can include both hybrid work and work at client premises but always reporting to a physical office. The guidance states that “business operations with no physical commercial premises” are ineligible to transfer foreign workers into Canada under this category. Companies without physical premises include:

• • Businesses operating from non-commercial/residential locations;
  • Businesses operating out of co-shared premises; and
  • Virtual businesses using a mailing address in commercial locations.

We have concerns that businesses utilizing co-working spaces such as WeWork and remote first businesses may no longer be eligible for the ICT permit, if the temporary foreign worker is not coming from a treaty country; however, we are seeking additional clarifications on this provision.

The period of foreign employment required to be eligible for ICT remains one (1) year full-time within the past three years, and specialized knowledge is further defined to be usually acquired over a minimum of two (2) years within the transferring company. We will evaluate specialization, including both experience and education on a case-by-case basis to determine qualifications and whether an application is at risk of refusal.

Under the new guidance, the position with the foreign Multinational Corporation enterprise must be the “same” position that will be occupied in the Canadian company. Previously, a “similar” position was required.  It remains to be seen how strictly this will be applied by the IRCC when making a determination.

There are also enhanced expectations for companies to properly document that they are “actively engaged” in business. IRCC defines actively engaged in business as:

• • Doing business on a regular and systematic basis; and
  • Continuously providing goods or services.

We understand that these changes may have a large impact on many of our clients who have relied on remote work during the Covid-19 pandemic, and we are seeking further clarification. Additionally, we expect higher scrutiny on ICT specialized knowledge applications moving forward as the Canadian government is trending towards limiting immigration.

For more information or an assessment, please contact the T&S Americas team.