session 6b challenges with specialized knowledge petitions in the canada larry linton

PricewaterhouseCoopers LLP

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About the Author: Larry Linton


Larry Linton is a Senior Lawyer in the Immigration Law practice at PwC Law LLP. Larry has extensive

experience in providing immigration advice and assistance to businesses from a wide range of industry

sectors, including telecommunications and information technology, engineering, banking and financial

services, manufacturing, retail, education, oil and gas and professional services.

Larry regularly works with Human Resource professionals and internal mobility teams on policies and

procedures related to recruitment, retention, and related immigration matters. He also has experience in

helping private clients meet their immigration needs.

Furthermore, Larry has significant experience interacting with domestic processing centers, Canadian

Ports of Entry, and Canadian Consulate Generals, High Commissions and embassies abroad. He provides

training to human resource professionals on immigration compliance and the development and

implementation of related policies and procedures.

In addition to his call in Ontario, Larry is a duly admitted Attorney in South Africa and was called to the Bar

in New Zealand. He graduated with a Bachelor of Arts and a Bachelor of Laws degree from the University

of the Witwatersand, in South Africa. He is a member of the Law Society of Upper Canada and the

Immigration and Citizenship Section of the Canadian Bar Association.

PwC Law LLP

INSZoom ConferenceBengaluruOctober 28, 2015


About Us

• One of Canada’s largest and leading corporate immigration law firms

• Over 90 immigration professionals across Canada

• Offices in Vancouver, Calgary and Toronto

• Specialists in Canadian, US and global immigration

• Part of PwC LLP’s global network of immigration service providers

• Clients across a wide variety of sectors including energy, retail, natural resources, construction, engineering, digital media, technology, manufacturing and others


Obtaining a Canadian Work Permit


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International Mobility Program

• Examples of LMIA-exempt work permit categories under the International Mobility Program (IMP) include:

NAFTA professional

Post-graduate

work permit

Bridging open work

permit

Emergency repair

Spousal work permit

Reciprocal employment

Intra-company transfers

IEC / Working holiday

IMP


Intra-company transferees – Specialized Knowledge


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Intra-company transferees – Specialized Knowledge

• Effective June 2014, CIC officers have been applying a more rigorous testfor specialized knowledge. Applicants now must possess a high level of:

◦ proprietary knowledge of the company’s products, services,research equipment, techniques, or management and

◦ knowledge at an advanced level of expertise.

Proprietary Knowledge

• Uncommon expertise related to the company’s products and services and its application in international markets

• Advanced knowledge of the company’s specific processes and procedures that is unusual, and not widespread across the organization

• Must be critical to the business of the Canadian branch

Advanced Level of Expertise

• Significant and recent experience with the company

• Expertise used to contribute significantly to the company’s productivity

• Knowledge that is unusual within the firm and not easily transferrable

• Unique and uncommon within the company as well as in the industry


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Assessing Specialized Knowledge

• Unique and unusual abilities not easily found in a particular industry

• Knowledge not easily transferable to another individual

• Highly unusual knowledge/experience within the industry andwithin the organization

• Proprietary knowledge of particular and unusual business processes or methods, not widespread across the organization, or in the Canadian labour market

• Applicant’s proprietary knowledge must be critical to the Canadian operations

• Significant detriment to the business without the applicant’s expertise


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Wages

• Salary or wage should be consistent for the specialized worker within the industry

• Must meet the Canadian prevailing wage for the specified occupation and region

Employer Compliance

Employer requirements

• New rules have been introduced that requires employers supporting work permits under IMP to provide the job offer & other relevant information to CIC before the foreign worker may apply for a work permit

• As of October 28, 2015, this process will be completed online through the Employer Portal System

Associated Fees

• A “compliance fee” of $230 per work permit must be submitted for employer-specific work permits under the IMP


Facilitating Successful Work Authorization in Canada – Question & Answer


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Proprietary Knowledge – Question 1

Question:

For the purposes of the intra-company transferee specialized knowledge (ICT-SK) category, are the company’s unique consulting processes considered proprietary knowledge?

Answer:

Knowledge of “unique consulting processes” is a vague descriptor and significant information would need to specify what this actually means in the context of the application at hand.

Recommendation:

• Have a detailed support letter explaining the unique and uncommon process, and the relevance to the industry

• Reflect this uncommon character of the process in the applicant’s resume


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Proprietary Knowledge – Question 2

Question:

Would an individual who has been employed by a company for one year, and in the same role, be deemed to possess proprietary knowledge of that company's proprietary product?

Answer:

It must be determined whether the company is the employer or the client. There may be instances where proprietary knowledge of client products may be relevant in assessing if the knowledge is uncommon or unusual within the industry. However, assessments of proprietary knowledge and advanced expertise focus primarily on the employer’s (not the client’s) products, services, processes and procedures, regardless of whether the applicant has worked for a short period with the employer.

Recommendation:

• Clearly specify the details of proprietary knowledge, and demonstrate that the applicant possess a high level of proprietary knowledge of the employer’sproduct and services.


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Advanced Expertise – Question 3

Question:

How many years of experience would an individual need to have to be deemed to posses advanced expertise? Would a recent graduate with one year work experience with a company (and no previous work experience) be deemed to possess advanced expertise for the purposes of the ICT-SK category? If not, can another period of time be determined as an objective criterion to assist businesses in identifying suitable candidates to meet contractual commitments in Canada?

Answer:

The applicant would have to demonstrate an advanced level of knowledge that is unusual and different within the industry. A first-level university graduate with one year work experience will most likely not meet this criteria, as demonstrating proprietary knowledge in such a context will be a challenge. The program delivery instructions indicate “the longer the experience, the more likely the knowledge is indeed ‘specialized’.”

Recommendation:

• Demonstrate that the applicant’s knowledge is unique to the region, the industry, and company

• Since an individual with specialized knowledge is deemed to be a specialist, ensure the candidate chosen possesses advanced knowledge and skills related to the relevant service or product


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Documentary Requirements– Question 4

Question:

In the case of demonstrating proprietary knowledge, is it sufficient that a company attest that the applicant possesses proprietary knowledge in a letter of support, and include employee's CV/resume as evidence of this? If not, what other documentation would be required?

Answer:

It is key that the company provide a submission letter outlining how and why the applicant meets the requirements for possessing proprietary knowledge. In addition, the applicant’s résumé is a key part of the assessment. The résumé should be sufficiently detailed to support arguments regarding proprietary knowledge.

Additional supporting documents: certificates for intra-company training on proprietary products, awards, articles, etc.

Recommendation:

• Be sure to connect the dots between the facts and the test being addressed.

• Include salary information and job descriptions for the client’s employment outside of Canada.

• If a client is being identified as being key personnel with advanced and unusual expertise, ensure this is reflected in their wages in their current position.


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Documentary Requirements– Question 5

Question:

As a general principle, is providing more documentation that links the intended work in Canada to the CV better (e.g. more details about the scope and nature of work)?

Answer:

More specific information on the proposed work / role of the applicant in Canada is helpful. Any information which will assist in assessing proprietary knowledge (vis a vis the parent / branch / subsidiary / affiliate in Canada) and any potential disruption or impact on operations is helpful.

Recommendation:

• The applicant’s CV should closely reflect the skills and knowledge the applicant will utilize in the intended position.

• Provide supporting documents such as: additional training certification/courses, company material on the specialized service or product.


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Prevailing Wage in Canada– Question 6

Question:

Will an applicant receiving a salary well above prevailing wage in Canada, in and of itself, be deemed to possess specialized knowledge? If so, what level or percentage above the prevailing wage would be an indicator? Is paying the prevailing wage enough to satisfy the criterion regarding the wage floor?

Answer:

In the absence of specific on-point submissions demonstrating that the applicant possesses a high degree of proprietary knowledge and advanced expertise, wage alone will not be determinative. Payment well in excess of the prevailing wage might be a supporting consideration. The wage floor is a minimum threshold that must be met in assessing prevailing wage requirements.

Recommendation:

• Ensure that the salary offered is above the average salary. An individual possessing specialized knowledge that is uncommon in a particular industry is considered a specialist, and the salary should reflect this.


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The Percentage of Employees in a Given Company with Specialized Knowledge– Question 7

Question:

According to the program delivery instructions, specialized knowledge "will by definition be held by only a small number or small percentage of employees of a given firm." Is the definition of "a given firm" the subsidiary in India, the Canadian branch, or the global company?

Answer:

This should be viewed globally.

Recommendation:

• Employers should ensure that the applicant’s knowledge and skill set is not wide spread amongst the organization, and their employment is critical to the operations of the Canadian branch.


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The Percentage of Employees in a Given Company with Specialized Knowledge– Question 8

Question:

If only 10% of a given firm's employees possess the knowledge put forth in an ICT-SK application, would those employees be deemed to possess specialized knowledge? What about 5%? Is the processing officer looking at these types of percentages as part of the adjudication process?

Answer:

The program delivery instructions do not provide specific ratios or measures. However, they clearly suggests that the specialized knowledge should be “unique and uncommon” and that applicants should demonstrate that they are “key personnel”.

Recommendation:

• The employer has the onus of showing that only a limited number of individuals possesses the relevant knowledge within the industry and their organization. The fewer the number of individuals who possess the relevant knowledge, the higher the applicant is deemed to be specialized.


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Indian Salary– Question 9

Question:

Is an employee's salary in India an indication of whether an employee possessed specialized knowledge? Is there a set salary level (such as prevailing wage in India) that is used in determining this?

Answer:

Based on the high volume of applications the Visa Offices in India receive and their experience, they are able to recognize when the Indian wage in a given occupation / application is not indicative of the applicant being unique, uncommon or key personnel. As a general rule the lower the salary in India, the less likely it is that the applicant is key to the employer and possesses a high degree of proprietary knowledge and advanced expertise.

Recommendation:

• Salary must at all times meet the prevailing wage in the industry and working region. Since specialized knowledge individuals possess a higher degree of knowledge and advanced expertise, their salary should be reflective of this specialization.



Contact Details

Larry Linton

[email protected]

PwC Law [email protected]

1-800-993-9971http://www.pwc.com/ca/law


mailto:[email protected]

http://www.pwc.com/ca/law


This publication has been prepared for general guidance on matters of interest only, and does not constitute professional advice. You should not act upon the

information contained in this publication without obtaining specific professional advice. No representation or warranty (express or implied) is given as to the

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