Intra-company transferees (ICT) – [R205(a) – C61, C62, C63] – Canadian interests – International Mobility Program

In these instructions “officers” refers to employees of both Immigration, Refugees and Citizenship Canada and the Canada Border Services Agency.

The instructions on this page should be reviewed in conjunction with:

• Employer-specific work permits – General processing – International Mobility Program
• Assessing the genuineness of the offer of employment on a work permit application
• Conditions and validity period on work permits
• Public list of Employers who have been non-compliant

There are two different paragraphs in the Immigration and Refugee Protection Regulations (IRPR) where the work of a foreign national transferring from a position in a foreign enterprise to a Canadian enterprise with a qualifying relationship is described; both paragraphs fall within the International Mobility Program (IMP).

Paragraph R204(a) applies where Canada has an international free trade agreement which includes provisions for intra-company transfers. The instructions for processing applications for foreign nationals under trade agreements are found at International Mobility Program: International Free Trade Agreements.

Paragraph R205(a) applies to the IMP category for all foreign nationals, regardless of citizenship, if their transfer will create or maintain significant social, cultural or economic benefits or opportunities for Canadian citizens or permanent residents.

The administrative codes C61, C62 and C63 are the codes under which the work of certain foreign nationals, entering Canada as temporary intra-company transfers between qualified foreign and Canadian enterprises for the purpose of improving management effectiveness, expanding Canadian exports, and enhancing competitiveness in overseas markets, may create significant economic or social benefits.

For detailed considerations on assessing significant benefit, please see: Significant benefit to Canada [R205(a) – C10] – Canadian interests – International Mobility Program.

Canada’s commitments under the General Agreement on Trade in Services (GATS) with respect to temporary entry of intra-company transfers (ICTs) are specified under administrative codes C62 and C63.

Officers must first be satisfied that the foreign national applying as an ICT meets all requirements of R200, including R205(a).

On this page

• Eligibility
• Documentary evidence
• Application assessment
• Final decision
• Related links

Eligibility

To be eligible under R205(a) as an ICT, all applicants must:

• be currently employed in an executive, managerial, or specialized knowledge capacity by an enterprise of a multinational corporation (MNC) outside of Canada;
  • the enterprise outside of Canada must be doing business in Canada, or will be doing business in Canada if the applicant intends to establish a new qualifying enterprise
• have been in continuous employment at the foreign enterprise of an MNC, in a similar position outside Canada, for at least 1 year (full-time) in the previous 3-year period from the date of initial application
• be transferring for a temporary period in the same capacity from the foreign enterprise of an MNC to the Canadian enterprise:
  • their position in the foreign enterprise must remain available for them to return to at the end of their assignment in Canada
• be transferring to a Canadian enterprise that
  • has the qualifying relationship of parent, subsidiary, branch, or affiliate of their current employer
  • is actively engaged in the business in respect of which the offer is made
• be compliant with all immigration requirements for temporary residence

All applicants must demonstrate that their work will generate significant economic, social or cultural benefits, or opportunities for Canadian citizens or permanent residents within the validity period of the work permit being sought.

Return to: On this page

Documentary evidence

The application for a work permit should include the following documentary evidence:

• proof that the enterprise of an MNC outside of Canada has a qualifying relationship with an enterprise that is doing business in Canada
  • the business must be regularly, systematically, and continuously providing goods and/or services in Canada
  • if the foreign national will be establishing a new qualifying enterprise in Canada, they must provide a timeline and supporting evidence to establish when the new enterprise will begin doing business
  • the presence of an agent or office in Canada does not itself adequately demonstrate that the enterprise is doing business
  • an enterprise with no employees which exists in name only would not qualify as doing business
• an offer of employment submitted through the Employer Portal or through alternate means if authorized
  • the offer of employment must clearly describe
    • the unique skills and experience required by the employee in order to perform the work sought
    • the relationship between the enterprise in Canada and the enterprise outside of Canada
  • the occupation in the offer of employment must be in the same capacity as the applicant’s current occupation with the enterprise outside of Canada
• proof that the foreign national is currently employed by an enterprise of an MNC outside Canada and their employment is in an executive or managerial capacity or one involving specialized knowledge
  • executive or managerial: the position title, place in the organization, job description
  • specialized knowledge: evidence that the person has such knowledge and that the position in Canada requires such knowledge;
• a letter of introduction from the enterprise that specifies the unique skills and experience required for the position:
  • the foreign national’s current position in an executive or managerial capacity, or one involving specialized knowledge, i.e., position, title, place in the organization, job description;
  • the unique skills and experience required by the employee must be clearly outlined;
  • the position in Canada, i.e., position, title, place in the organization, job description;
  • intended duration of stay; and
  • description of the relationship between the enterprise in Canada and the enterprise outside of Canada;
• evidence that the foreign national has been employed continuously outside of Canada by the foreign enterprise of an MNC for 1 year (full-time) within the 3-year period immediately preceding the initial date of application;
• proof that the foreign national has the education and experience to perform the work sought in Canada
  • the onus is on the foreign national to provide evidence that they meet the eligibility criteria specified in the offer of employment. Evidence should include, but is not limited to, the following:
    • reference letters
    • letter of support from the company
    • job descriptions that outlines the level of training acquired
    • years of experience in the field
    • degrees or certifications obtained in the field
    • list of publications and awards (where applicable)
    • a detailed description of the work to be performed in Canada
• supporting documentation that shows
  • how the work of the foreign national will create or maintain significant cultural, social or economic benefit
  • an indication of the temporary nature of their stay to satisfy an officer that they will leave Canada and are not attempting to become de facto permanent residents
• if the foreign national is entering Canada to establish a new qualifying enterprise, they must provide supporting documentation that explains how they meet the requirements of this ICT category (see Occupational capacity – establish a branch, subsidiary or affiliate enterprise [administrative code C61])

Return to: On this page

Application assessment

When officers are reviewing the work permit application in the ICT category, the following factors should be reviewed to ensure that the criteria are met.

Review of the offer of employment

Officers should review the offer of employment found in the Employment Details tab in GCMS for information provided by the employer or the matching fields on the IMM 5802 form (if the employer was authorized to use it).

Current and continuous employment

The foreign national must provide sufficient documentary evidence to show that on the day they applied they were employed in an executive, managerial or specialized knowledge capacity. They must also demonstrate that their position in the foreign enterprise remains available to them throughout their period of time in Canada so that they might return to their position once their employment in Canada is completed.

In order to meet the requirement of 1 full year out of the 3 years immediately preceding the application, the foreign national has to have been employed continuously in a similar full-time position for at least 1 year by the multinational enterprise that is transferring them to Canada. That employment may not have been accumulated by part-time work equivalent to 1 year.

The employment may have been via payroll or by contract directly with the foreign enterprise. If they are directly contracted with the enterprise, they should be working only for the qualifying enterprise.

Return to: On this page

Multinational corporation (MNC)

An MNC is a company that has revenue generating business operations in a least 1 country other than its home country and that generates revenue beyond its borders.

One of the existing business operations may already be established in Canada and would meet the definition of an MNC.

Assessing applications to establish a new qualifying enterprise in Canada (administrative code C61)

When assessing an ICT work permit application to establish a new enterprise in Canada (administrative code C61), officers must ensure that the foreign enterprise is that of an existing MNC with revenue generating BUSINESS operations in at least 2 countries (i.e., the enterprise’s home country, where it is incorporated, and at least one other country) before establishing an enterprise in Canada.

An enterprise outside of Canada cannot become an MNC by using the ICT work permit category to establish their first foreign enterprise in Canada.

Foreign nationals who are seeking entry to Canada to establish a new enterprise but who are doing so on behalf of a foreign enterprise that does not meet the definition of an MNC are not eligible for a work permit as an ICT (administrative code C61).

Alternatively, these foreign nationals may submit applications for consideration under the IMP LMIA-exemption category for entrepreneurs or self-employed individuals—Entrepreneurs or self-employed individuals seeking only temporary residence – [R205(a) – C11] – International Mobility Program—or they can review the provisions available under paragraph R204(a), where Canada has an international free trade agreement that includes provisions for intra-company transfers. The instructions for processing applications for foreign nationals under trade agreements are found at International Mobility Program: International Free Trade Agreements.

Qualifying relationship between the Canadian and foreign enterprise of the MNC

Relationship between enterprises of the MNC

The Canadian and foreign enterprises must be legal entities that have parent, branch, subsidiary, or affiliate business relationships. Ownership and control are the factors which establish a qualifying parent, branch, subsidiary, or affiliate relationship.

Ownership means the right of possession with full power and authority to control.

Control means the right and authority to direct management and operations of the enterprise.

Legal entity means any enterprise constituted or organized under applicable law, and either privately-owned or owned by the government, including any corporation, trust, partnership, sole proprietorship, joint venture or other associations.

Also included are religious, charitable, service, or other non-profit organizations which must demonstrate that it is a firm, corporation, or other legal entity that has a parent, subsidiary, branch or affiliate relationship. There is no difference in the qualifying relationship requirement between the enterprises regardless of whether they are commercial or non-profit entities.

Non-qualifying business relationships

A qualifying relationship cannot exist where the foreign enterprise is not that of an existing MNC.

Qualifying relationships do not include business relationships between suppliers or clients (i.e. where the foreign enterprise sells products or services to the Canadian entity).

Business relationships that are based on contracts, licensing arrangements and franchise agreements are not qualifying relationships for eligibility under the ICT category. Associations between companies based on factors such as ownership of a small amount of stock in another company, exchange of products or services, licensing or franchising agreements, membership on boards of directors, or the formation of consortia or cartels do not create affiliate relationships between the enterprises.

Actively engaged

Both the Canadian and the foreign enterprise of the MNC must continue to exist and operate for the duration of the intra-company transferee’s intended stay in Canada.

As required by R200(5)(a), in order to ensure that an enterprise, not only legally exists but also can demonstrate the ability to provide stable employment for the requested period, they must be:

• doing business on a regular and systematic basis
• continuously providing goods or services

It does not include the mere presence or establishment of an agent or office in Canada.

For more information on assessing whether an employer is “actively engaged”, see Assessing the genuineness of the offer of employment on a work permit application.

Acquisitions or mergers

The focus for ICTs in the event of a merger or acquisition is establishing that a qualifying relationship remains, even though there have been changes in ownership or business structure.

The onus is on the foreign national to provide evidence that the foreign and Canadian operations continue to exist and do business and the position remains that the ICT can return after their assignment in Canada.

A qualifying relationship remains if the Canadian and foreign enterprises continue to meet the definition of parent, branch, subsidiary, or affiliate companies. If the enterprises no longer meet the requirements for these relationships, then any ICTs currently working for the Canadian enterprise would not qualify to continue working for the new owner without obtaining a new work permit.

If the qualifying relationship remains, ICTs may continue to work for the new owner on the strength of their existing work permit.

For new entries to Canada, in the context of a recent acquisition or merger, if the transferee has been employed by the acquired company for at least 1 year in the previous 3 years and the new “successor entity” can demonstrate that it has assumed the interests and obligations, assets and liabilities of its new acquisition, and continues to operate the same type as the original business, the transferee would be eligible to apply for a work permit under this provision.

For instructions on mergers and acquisitions, see Employer name changes and corporate restructurings

Return to: On this page

Employer-employee relationship

“Must take a position in Canada” under the ICT criteria means that an employer-employee relationship with the Canadian enterprise to which they are being transferred must exist.

The essential element in determining this relationship is the right of the Canadian enterprise to order and control the foreign national in the performance of their day-to-day activities. This is especially important for employees working at client sites and not at the parent, subsidiary, branch, or affiliate.

If the foreign national is not going to take a position in a Canadian branch, officers should examine whether they might better be classified as a business visitor, which includes provisions for after-sales service (see Business visitors: Authorization to work without a work permit).

Rather than issuing multiple short-term permits for each specific project, a work permit for a maximum duration of 1 year may be issued for a number of specific projects. This applies to projects taking place at the company premises in Canada or at a client site (generally seen as applicable for persons the company needs to transfer for their specialized knowledge).

Long-term work permits (more than 1 year) in the intra-company transferee category should not be issued for service personnel living outside Canada whom the company wishes to parachute into a client site of the international company on an as-needed basis.

Location of employment

If the work of the foreign national can be completed remotely, a reasonable explanation of why the foreign national must be in Canada would be required. Time difference between Canada and the foreign national’s location would not be a justifiable reason for a transfer.

Foreign nationals transferring in an executive capacity do not necessarily need to relocate full-time to Canada to manage the Canadian enterprise. However, they must occupy a position within the Canadian enterprise and there should be a clear employer-employee relationship with the Canadian enterprise. The executive should be leading the Canadian enterprise on a day-to-day basis.

Foreign nationals transferring to establish a new qualifying enterprise should provide evidence to corroborate the need for them to relocate to Canada to manage the Canadian business operation which will operate independently of the foreign company.

ICT specialized knowledge workers must be clearly employed by, and under the direct and continuous supervision of the Canadian enterprise. If the Canadian enterprise will be placing the foreign national at a location owned or controlled by a third party, the foreign national’s day-to-day activities must be controlled by the Canadian enterprise submitting the offer and not the third party business.

Commercial physical premises

ICTs must work at the physical commercial premises where business operations are conducted in Canada. However, there may be circumstances where the business location is held in the legal representative’s office until the ICT (i.e. a foreign national applying for a C61 work permit) arrives in Canada to establish the business. It is important that the operation is generating revenue while also having a physical presence in Canada.

Business operations with no physical commercial premises (i.e., businesses operating from a non‑commercial/residential location or virtual businesses using a mailing address in commercial locations such as malls) are not eligible to transfer ICTs to Canada.

There may be situations where the business operations for the Canadian enterprise operate in a co‑shared space; however, officers must be satisfied that the business has a legitimate presence in Canada. The following criteria may be useful when making this assessment:

• shared receptionist
• company name in the directory of the building
• direct phone line answered by company staff
• published address on the company web site
• a dedicated space where employees work and client meetings are held
• have a business licence
• accessible to the public

Return to: On this page

Occupational capacity – Establish a branch, subsidiary or affiliate enterprise (administrative code C61)

An applicant seeking entry to open a new qualifying enterprise on behalf of the foreign enterprise of an MNC may qualify as an ICT, if they provide evidence that the organizational structure of the enterprise in Canada will support a managerial or executive position or, in the case of specialized knowledge (e.g. an accountant, lawyer, etc. involved in establishing the new enterprise), is expected to be doing business within the first year of operation.

Factors such as the ownership or control of the enterprise, the commercial premises, the investment commitment, the organizational structure, the goods or services they will provide and the continuing viability of foreign operation should be considered. The financial ability to establish and support the new business operations should also be taken into consideration.

Assessing whether a new enterprise is actively engaged

Foreign nationals applying for an ICT work permit (administrative code C61) to establish a new qualifying enterprise in Canada, must provide a timeline and supporting evidence to establish that the new enterprise will become actively engaged once the new branch, subsidiary or affiliate is established.

Evidence that the enterprise is a legal entity and is actively doing business in Canada must be provided. Annual reports (for public companies), articles of incorporation, profit/loss statements, partnership agreements, business licence, business tax returns (T2 Returns) and registration of a payroll account with Canada Revenue Agency (CRA) are examples of supporting documents that could serve as evidence that the enterprise is actively engaged in doing business.

Owners/Operators

Foreign nationals and/or their immediate family members who own a controlling interest of the foreign enterprise who are seeking entry to Canada to start a new business, are not eligible as an ICT unless they are able to demonstrate that their enterprise meets the requirements of an MNC.

Employees entering Canada to establish a qualifying enterprise

Employees of foreign enterprises of MNCs may be eligible as an ICT if they are seeking to establish a qualifying enterprise in Canada on behalf of their current employer.

To be eligible as an ICT under administrative code C61, in addition to meeting the eligibility requirements for all ICTs, the employee must:

• be at the executive or management level, or be an employee demonstrating specialized knowledge;
• be entering Canada to secure physical commercial premises for the new Canadian enterprise;
  • the enterprise may initially use its counsel’s address until a premise in Canada can be purchased or leased
• provide reasonable human resource (HR) plans to maintain or hire staff for new enterprise;
  • These plans must demonstrate that the Canadian enterprise will be large enough to support an executive, management or specialized knowledge function throughout the entire duration of the foreign national’s work permit.
• provide a business plan and financial documentation as evidence that the foreign enterprise has the capacity and financial ability to cover the costs to establish an enterprise in Canada as well as the costs to continue to operate the enterprise during the initial ramp-up period.

Extensions for C61 work permit holders

It is expected that within the one-year duration of the work permit issued under administrative code C61 to establish a new branch, subsidiary or affiliate, the enterprise will become actively engaged in providing a good or service in Canada. As such, the applicant would transition to the executive or manager category (C62) or specialized knowledge category (C63) for any extension of work in Canada.

See Current and continuous employment for information on assessing work permit extension applications under a different ICT category from the initial ICT work permit.

Evidence should be provided by the applicant and foreign enterprise to demonstrate:

• they have secured physical premises for their operations in Canada;
• they are continuing efforts to establish the Canadian enterprise; and
• the enterprise has the financial ability and resources to ensure the viability of the Canadian operation.

In addition, all requirements must continue to be met, including the qualifying relationship of the foreign and Canadian enterprise.

If the officer is satisfied that the delay in becoming actively engaged was outside of the applicants control, the viability of the Canadian operation is achievable and all the requirements of R200 and R205(a) are met, an extension may be granted under administrative code C61 for an additional 6 months.

Return to: On this page

Occupational capacity – Executives and managers (administrative code C62)

This category includes foreign nationals in the executive or managerial capacity. In the National Occupational Classification (NOC) this would include the Training, Experience, Education and Requirements (TEER) categories 0 or 1. There must be evidence that the Canadian operation’s size and organizational structure justifies the need for an executive or managerial function.

Executive capacity (TEER 0) means that the employee primarily:

• directs the management of the enterprise or a major component or function of the enterprise;
• establishes the goals and policies of the enterprise, component, or function;
• exercises wide latitude in discretionary decision-making; and
• receives only general supervision or direction from higher level executives, the board of directors, or stockholders of the enterprise.

Managerial capacity (TEER 1) means that the employee primarily:

• manages the enterprise, a department, subdivision, a component or an essential function of the enterprise;
• oversees and controls the work of:
  • other managers or supervisors;
  • professional employees; or
  • an essential function within the enterprise;
• has the authority to recommend or to hire, fire or make other personnel decisions, such as promotion and leave authorization. Where they do not directly supervise employees, the manager functions at a senior level within the hierarchy of the enterprise;
• exercises discretion over the day-to-day operations of the activity or function for which the employee has the authority.

Exclusions

Persons who are in positions that are more accurately defined as lower-level management and who will perform functions that more accurately align with those of managing supervisors, or persons with managerial sounding titles only, are not eligible for work permits under provisions for ICTs. A first line supervisor is not considered to be acting in a managerial capacity unless the employees they supervise are professionals.

Return to: On this page

Occupational capacity - Specialized knowledge workers (administrative code C63)

Consistent with Canada’s commitments in the General Agreement on Trade in Services (GATS), this category is intended to support the movement of highly-specialized employees that possess an advanced level of expertise and an advanced level of proprietary knowledge of the company’s products, services, research, equipment, techniques or management.

Specialized knowledge is knowledge that is unique and uncommon among the enterprise’s general work force, and can therefore only ever be held by a small number of a given enterprise’s employees. Specialized knowledge workers must therefore demonstrate that they are key personnel with unique product knowledge or skills, not simply highly skilled.

Definition of specialized knowledge

An employee with specialized knowledge possesses both advanced proprietary knowledge and an advanced level of expertise. Advanced proprietary knowledge alone or advanced expertise alone, does not qualify the foreign national for this work permit category.

Advanced proprietary knowledge requires an applicant to demonstrate a high and uncommon degree of enterprise-specific expertise related to an enterprise’s product or services. Proprietary knowledge also implies that the enterprise has not divulged specifications that would allow other enterprises to duplicate the product or service.

The foreign national should be able to demonstrate:

• uncommon knowledge of the host enterprise’s products or services and their application in international markets; or
• an advanced level of expertise or knowledge of the enterprise’s processes and procedures such as its production, research, equipment, techniques or management.

An advanced level of expertise requires skills or knowledge gained through significant^{Footnote *} and recent^{Footnote **} experience with the organization and used by the individual to contribute significantly to the employer’s productivity.

The foreign national should be able to demonstrate the following:

• The foreign national possesses abilities, knowledge and expertise that are unusual and different from those generally found in what would normally be considered the general work force in a particular industry or within the Canadian enterprise, and that cannot be easily transferred to another individual in the short-term
• The foreign national’s expertise must be of a nature such that their skills are critical to the business of the Canadian branch and a significant disruption of business would occur without the applicant’s expertise.
• The foreign national’s proprietary knowledge of a particular business process or methods of operation must be unusual, not widespread across the organization, and not likely to be available in the Canadian labour market.

Assessing specialized knowledge

Officers should consider the following when determining if a foreign worker holds specialized knowledge:

Occupation

What is the TEER category of the position’s NOC?

Employers are required to declare the NOC code and job title in the IMP offer of employment, as well as details of how the position and the foreign national being hired meet the requirements the LMIA exemption for ICTs with specialized knowledge (administrative code C63).

The ICT position in Canada must be of a NOC and TEER category that is similar to the applicant’s home position. The NOC code will also be used to determine if the salary offered reflects specialized knowledge as noted in the Mandatory wage floor section.

Although there are no TEER category requirements, a foreign national applying in the ICT specialized knowledge category should be employed in high TEER categories (TEER 0, 1, 2) to reflect that they have advanced proprietary knowledge and extensive experience in a company. For a foreign national with a high TEER category position, an appropriate degree and less than 2 years in a company, a case has to be made as to how the foreign national possesses both advanced proprietary knowledge and advanced expertise.

Applications for a position in a lower TEER category (TEER 3, 4 and 5) should always be reviewed in greater detail. While it is unlikely that lower TEER occupations meet the requirements for specialized knowledge, applicants in lower TEER occupations who can demonstrate that they have the requisite levels of proprietary knowledge and an advanced level of expertise may meet the requirements.

Education and training

Is a diploma or degree required by the employer or in the NOC employment requirements for the position sought?

Given the nature of specialized knowledge, the foreign national should not require training at the Canadian enterprise related to their area of expertise and work.

Are there specialized training courses only provided by the foreign enterprise?

As the specialized knowledge should not be readily available within the Canadian labour market, and cannot readily be transferred to another individual, the foreign national must not receive specialized training by other employees of the Canadian enterprise which would lead to the displacement of Canadian workers.

Experience

How many years of experience in their position does the foreign national have with the foreign enterprise?

How many years of experience does the foreign national have in the industry?

What duration of experience was necessary to actually acquire the specialized knowledge?

Mandatory wage floor

If a foreign national possesses specialized knowledge the compensation should be consistent with such a specialist. It is expected that such a specialist would be receiving above average compensation in their home country.

For the Canadian position, a minimum wage floor set at prevailing wage for the region is required to reflect the specialized knowledge. Prevailing wage for the specific occupation and region of work is found on the Job Bank Compare wages page.

Return to: On this page

Final decision

Approval

The work permit will be issued under the authority of R205(a).

In the GCMS under the Application screen, officers should enter the information below is in the specified fields.

Return to: On this page

Duration of work permit

C61 – Establishing a qualifying enterprise (start-up): maximum of 1 year. No extensions are available under this exemption code.

C62 - Executives and managers: initial maximum 3 years, 2-year renewals allowable; total period of stay may not exceed 7 years.

C63 - Specialized knowledge workers: initial maximum 3 years, 2-year renewals allowable; total period of stay may not exceed 5 years.

The foreign national must be able to demonstrate that their position in the foreign enterprise is equivalent to the new position in Canada that they are applying for and that they meet other all other eligibilities such as 1 year of employment in the same occupation in the 3 years preceding the new work permit application.

An application for a new position will be assessed against both the duties and responsibilities listed in the offer of employment for the new position and NOC of the new position. The application may be refused if the officer is not satisfied that the foreign national can perform the work sought or that the job offer is genuine.

See the section above on Current and continuous employment for further information.

Maximum duration of work in Canada over R205(a) and R204(a)

After an ICT has reached their maximum duration of work cap (7 years for executives and managers or 5 years for specialized knowledge workers), they must complete 1 year of full-time employment in the enterprise outside Canada if they wish to re-apply as an ICT.

This requirement, which also exists in the FTAs, applies to all foreign nationals in the ICT category, whether they enter under the provisions of paragraph R205(a) or under the international trade agreement provisions of paragraph R204(a). It also applies to foreign nationals who wish to switch from a work permit issued under paragraph R205(a) to a work permit issued under paragraph R204(a).

Breaks in Canadian service

Most foreign nationals who have worked in Canada under the ICT category may again receive consideration under this category if they have been employed with the foreign enterprise outside of Canada for at least 12 months. This includes all foreign nationals under international free trade agreements. Refer to the categories of work with validity periods which may not be exceeded.

Recaptured time

Normally, the duration of the work permit will be used to calculate the maximum 5 or 7 year time limit. However, documented time spent not working for the Canadian enterprise during the duration of the work permit can be recaptured to allow the ICT the full 5 or 7 years of actual work in Canada.

The duration of the recaptured time cannot exceed the cap allowed for the occupational capacity (i.e. 7 years for managers or executives, or 5 years for specialized knowledge workers).

Recaptured time will be issued—as extensions, and in increments of no more than 2 years—from the date that has been determined within the cap period after the time not worked has been deducted.

In other words, if an ICT has reached their 7 year cap and has documented evidence of time spent not working that is equal to 2 years, then they may apply for a 2-year extension.

Remarks on the work permit should state that no recaptured time may subsequently be requested for any time not worked during that 2 year extension period. System notes in regard to cases where recaptured time requested has been authorized must be clear for the benefit of officers processing future extension requests.

Return to: On this page

Refusal

When officers are not satisfied that the specific factors for the administrative code either C61, C62 or C63 or the regulatory requirements under R200 and R205(a) are met, they need to clearly document their reasons in the refusal note.

A decision is reasonable and therefore defendable when another person is able to trace the decision maker’s reasoning, without encountering fatal flaws in the overarching logic, and is satisfied that there is a line of analysis within the given reasons that could reasonably lead the tribunal from the evidence before it to the decision maker’s conclusion.

The officer needs to engage with the documentary evidence that was provided by the applicant. Simply stating ‘I have reviewed the submissions and I am not satisfied that R205 is met’ is not sufficient for the another reasonable person to understand the logic of the decision without reviewing all of the evidence again.

For example, if the applicant has provided a detailed business plan, the officer should summarize the areas of the business plan they are not satisfied with in their notes and explain why they are not satisfied the applicant meets the requirements of the administrative code and R205(a).

In order to reduce the possibility of litigation on the refusal, officers should follow the steps in Decision making: Standard of review and process for making a reasonable decision when finalizing their refusal notes.

Refusal grounds

The grounds in the refusal letter should reflect what the officer has stated in their notes.

Work permits are issued if all of the requirements stated in R200 are met. Therefore, refusal grounds should be linked to one of those requirements. Below are some examples of some of the requirements:

R200(1)(b) – the officer must be satisfied that the applicant will leave Canada at the end of their period of authorized stay, including any assessment of dual intent if there is a PR application. If the officer is not satisfied that the job offer is genuine, it may be reasonable to determine that they will not leave Canada at the end of their stay. However, officers must provide a reasonable, logical explanation of why they are not satisfied.

R200(1)(c)(ii.1) – the requirement is not met if the officer is not satisfied that the work of the applicant (i.e. the business) will provide a significant benefit or in other words the applicants work is not described in R205(a) or if the officer is not satisfied that the offer of employment is genuine as per R200(5).

R200(3)(a) – if the officer is not satisfied that the applicant will be able to perform the work offered. For example, they don’t have required experience, education, language level or any other factor that the officer determines is required to perform the work.

R200(3)(f.1) if the offer of employment under R209.11 or the fee required under R303.1 have not been completed prior to the submission of the work permit application.

Return to: On this page

Related links

• Significant benefit to Canada [R205(a) – C10] – Canadian interests – International Mobility Program
• Entrepreneurs or self-employed individuals seeking only temporary residence – [R205(a) – C11] – International Mobility Program