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CCCA_V6No2_Dept-CorpImmigration-FIN_CCCA_V6No2_Dept-IntellectualProperty 5/23/12 11:47 PM Page 15 Corporate Immigration In September, Citizenship and Immigra- In Arora, a 23-year-old business develop- itself, to qualify an individual as specialized tion Canada introduced a new rule to ment manager with a Grade 12 education knowledge worker. “recapture” time spent outside of Canada. and less than 3 years of experience with the Officers also are to compare the Now, if an intra-company transfer has a company, applied for a work permit as employee`s proposed Canadian job duties five-year time limit to work in Canada but manager. In refusing the application, the to job descriptions found on Canada works, for example, for two months in visa officer considered Mr. Arora’s relatively National Occupational Classification, a each of those years in the United States, an young age, high school education, limited Government of Canada publication of job additional eight months could be added to experience with the company, lack of evi- descriptions in Canada. If the employee’s the total period of time the employee is dence of past work experience, and modest proposed Canadian position will be at a allowed in Canada salary. In overturning the refusal, Mr. Justice lower level than the one they occupied O’Keefe stated that these factors could not abroad, the employee must show that “an Qualifying as an executive be used to refuse the application since they exceptional situation exists” to be consid- or manager were not criteria found in Citizenship and ered a specialized knowledge employee. While there are specific immigra- Citizenship and Immigration tion definitions for these cate- Canada went even further on gories, as a general rule, most C- the issue of wages. Now, officers suite employees qualify as execu- Specialized knowledge are instructed that specialized tives. Most managers qualify “ knowledge workers should “nor- under the definition of manager employees face the biggest mally” be paid a salary that unless the employee happens to challenges in “approximates the average wage” be a first-line supervisor of non- for that occupation and the loca- professional employees. In this the intra-company tion where the employee will be case, the employee may not be transfer category. working in Canada. In calculat- considered a manager within the ” ing the wage, non-cash per diems immigration context. However, cannot be included. As a result, consideration should be given as this will greatly affect wages paid to whether they can be considered as spe- Immigration Canada’s Foreign Worker to employees seconded to Canada for short cialized knowledge employees. Manual when assessing whether a person periods and may require that remuneration qualifies as an intra-company manager. packages with non-cash per diems be Qualifying as a specialized After Arora, Citizenship and Immigra- restructured. knowledge employee tion Canada updated its Foreign Worker Intra-company transfer rules are not Specialized knowledge employees face Manual allowing officers to take into simple. Careful immigration planning the biggest challenges in the intra-compa- account these factors when assessing spe- and an appropriate legal analysis are nec- ny transfer category. As a general rule, cialized knowledge workers. Interestingly, essary to eliminate uncertainty for trans- these employees must demonstrate either the update applied these factors to special- ferring employees. If the process is not specialized knowledge of a company’s ized knowledge workers only and not handled carefully, a multinational employ- product or service and its application in managers, as was the case in Arora. ee's first impression of a move abroad may international markets or an advanced Immigration officers are now instructed be negative. knowledge of the organization’s processes to consider an employee’s education, work and procedures. experience, and relevant training when R. Reis Pagtakhan is a corporate immigra- In March 2011, Arora v. The Minister assessing a specialized knowledge claim. As tion lawyer and partner with Aikins Law of Citizenship and Immigration was decid- well, immigration officers are instructed who focuses on obtaining Canadian tempo- ed which, for a short time, made qualify- that an employee’s knowledge of propri- rary entry and permanent residency for senior ing as an intra-company transfer some- etary tools used or developed by an executives, managers, professionals and other what easier. employer will not be sufficient, in and of company employees from all over the world. ÉTÉ 2012 CCCA Canadian Corporate Counsel Association 15