Background

On July 4, 2011, Citizenship and Immigration Canada (“CIC”) issued Operational Bulletin 316 (the “Bulletin”). The Bulletin contains additional instructions regarding the assessment criteria that should be considered when adjudicating specialized knowledge intracompany transferee work permit applications.

The background section of the Bulletin refers to a significant increase in specialized knowledge intracompany transferee applications that has occurred since the national labor market opinion exemption for IT workers was eliminated on September 30, 2010. Therefore, it can be inferred that the intention of these instructions is to further limit the number of temporary foreign workers who may qualify under this category.

Factors Considered

According to the Bulletin, when assessing a specialized knowledge worker, officers should consider a number of factors to determine if the application supports the claim of specialized knowledge. These factors include:

1. Education – is a diploma or degree required for the position sought?
2. Knowledge – is it relatively unique within the company and industry in that it is not commonly held?
3. Experience – does the experience with the foreign company/the respective industry support the claim of specialized knowledge
4. Salary – is the salary realistic in terms of Canadian wage levels for the occupation concerned?
5. Relevant training – does any previous training support the claim to specialized knowledge?
6. Supporting documentation – do the resume, reference letters, etc. support the claim?

Additional Guidance on the Meaning of Specialized Knowledge

The Bulletin further states that it is normally not sufficient for a worker to simply have knowledge of the proprietary tools used or developed by the employer. A specialized knowledge worker would normally possess the following characteristics:

1. Knowledge that is uncommon (i.e., beyond that generally found in a particular industry and within the company);
2. Knowledge that has been gained through extensive experience and is difficult to acquire in a short period of time;
3. Difficulty to train another worker to assume such duties;
4. The required knowledge is complex in that it cannot be easily transferred; and
5. A person possessing such knowledge would be in a position that is critical to the well-being or productivity of the Canadian employer.

Application of the National Occupational Classification

The Bulletin instructs officers to identify the occupation by evaluating the proposed job and matching it to one of the occupations listed in the National Occupational Classification (“NOC”). The following guidelines will then apply:

1. The proposed position in Canada must be at a NOC level that is similar to or greater than the applicant’s position abroad, unless an exceptional situation exists.
2. In conjunction with the foreign worker’s knowledge, education and experience, the NOC will also be used to determine the appropriate wage.

Required Salary or Wage

The Temporary Foreign Worker Guidelines relating to specialized knowledge workers already state that job offers must present salaries that are realistic in terms of Canadian wage-levels for the occupation concerned. The Bulletin clarifies that salaries of specialized knowledge workers in Canada should normally approximate the average wage for the stated occupation in the specified geographical location while working in Canada.

Salary calculations that include the use of per diems (i.e. allowances for accommodation, meals, transportation, etc.) in addition to wages, for the purpose of demonstrating that a realistic Canadian wage is being paid, are permitted. However, non-cash per diems (e.g., hotel, transportation paid for by the employer) may not be included in the calculation of the overall salary. Only allowances compensated in monetary form and paid directly to the employee are to be included.

For the purpose of assessing salary in relation to specialized knowledge, the Bulletin refers to www.labourmarketinformation.ca. Of course, this particular website no longer exists – it has been replaced by the Working in Canada website, which is available at http://www.workingincanada.gc.ca/.

The Bulletin does clarify that salary is only one of a series of factors that must be taken into consideration and that applications should not be refused on the basis of salary alone.

Significance of the Bulletin

The Bulletin does not necessarily refer to any new factors that were not already mentioned (at least in general terms) in the Temporary Foreign Worker Guidelines, although it does provide more specific (and perhaps more restrictive) instructions on how these factors should be assessed. The Bulletin also contains a few surprising statements, including the following:

1. That it is normally not sufficient for a worker to simply have knowledge of the proprietary tools used or developed by the employer (knowledge of proprietary tools used or developed by the employer probably should be considered specialized knowledge); and
2. That the proposed position in Canada must be at a NOC level that is similar to or greater than the applicant’s position abroad, unless an exceptional situation exists (this was not necessarily a requirement in the Temporary Foreign Worker Guidelines).

In any event, the author’s most significant concern is that the Bulletin tends to emphasize a more in-depth analysis of the relevant factors and suggests that a much stricter assessment of these factors will be conducted in future adjudications.