Immigration, Refugees and Citizenship Canada (“IRCC“) The International Mobility Program provides that a foreign worker can be issued a work permit without the employer needing a labor market impact assessment if the employee meets the requirements of the People transferred within the company (“TIC“) program.
Although some free trade agreements contain specific requirements, the general ICT rules applicable to citizens of all countries state that ICTs must:
- be currently employed by a multinational company and seeking to work at a parent company, subsidiary, branch or affiliate of that company;
- be transferred to a company that has a qualifying relationship with the company in which they are currently employed and will hold employment in a legitimate and continuing establishment of that company (where a period of 18 to 24 months may be used as a reasonable minimum guideline ) ;
- be transferred to a management, senior management or specialist position;
- have been continuously employed (through payroll or by contract directly with the company), by the company which plans to transfer them outside of Canada in a similar full-time position (non-accumulated part-time ) for at least one year during the three-year period immediately preceding the date of the initial application; And
- come to Canada for a temporary period only.
Applicants who have not had full-time work experience with the foreign company may still be approved based on an evaluation of several factors, including the number of years of work experience with the company foreign company, the similarity of the positions, the extent of any part-time positions in the foreign company and, above all, whether there appears to be an abuse of the ICT provisions.
Start-ups
There are additional requirements for multinational companies seeking to establish operations in Canada. When applying for an ICT business startup visa, applicants must demonstrate the ability of their business to establish itself in Canada.
Generally, the company must have secure physical premises to house Canadian operations. However, where the foreign worker is an executive or senior manager, then the company can use its lawyer’s address until the foreign worker can purchase or rent premises.
The company must demonstrate that:
- they have realistic plans for staffing the new operation;
- they have the financial capacity start a business in Canada and pay employees.
- in the event of a transfer of managers, that there are enough of them to assume several managerial or management functions; And
- when the ceding entity is a specialized knowledge employee, that the work is guided and directed by a manager.
Work permits for start-up businesses are generally for one year, although it is not uncommon for officers to issue work permits valid for three years when they are more than confident of the success of operations in Canada.
I have reproduced below two examples of cases where CIC approved ICT applications for start-up businesses. I note that these are not my applications, as I do not usually publish my own cases on this blog. These examples were rather obtained thanks to a Access to Information Act request.
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Important advantage
In Shams v. Canada (Citizenship and Immigration), 2023 FC 2023, Justice Fothergill upheld the refusal of an application to start an ICT business, in part because a visa officer ruled there was no significant benefit. Justice Fothergill wrote:
The officer found that hiring just one person in the first year and up to three at the end of the third year did not represent a significant economic benefit to Canadians or permanent residents. Mr. Shams claims the agent failed to take into account the economic benefits that would accrue to the contract workers Saba would hire, nor Saba’s plan to hire additional employees after the third year. The business plan explained that Saba would hire employees and enter into contracts with other companies and third-party service providers in Canada, and use the expertise of the Iranian engineering team to benefit the Canadian economy.
As mentioned earlier, the business plan was ambitious. He became increasingly speculative as he projected developments into the future. It was open to the officer to give little weight to his optimistic forecasts.
The business plan did not provide details on the number of contract workers or the duration of their employment. Furthermore, as the defendant points out, contract workers and third-party suppliers are already active in the Canadian economy and would not depend on Saba for their livelihood.
Section 205(a) of the IRPR requires that the economic benefits or opportunities be significant. Saba has proposed relying on its Iranian parent company for most of its skilled engineering workforce. The unspecified benefits granted to contract workers were largely aspirational and stemmed from a business plan with little evidentiary basis.