Nafta Intra-company Transfer

Executives

They are employees who hold an executive position must meet some or all of the following criteria to qualify for the intra-company transfer visa:

• In charge of directing the company’s management, one of its functions, or one of its major components
• Develops organisational goals and policies, including their components and functions
• Is in the position to exercise broad discretion in decision-making
• Works under the directives of higher-level executives, board of directors, or stockholders, but only in terms of general supervision or direction

An employee must engage in managerial or executive duties to qualify as a manager or executive under this category. To qualify as an executive under the intra-company transfer, an employee must prove the ability to make decisions with a broad scope but minimal oversight.

Senior Managers

Under the intra-company transfer, a holder of a Senior Managerial position performs some or all of the following tasks:

• Manages the organisation, a department, a subdivision, function, or one of its components
• Supervises and controls the work of other managers and professional employees
• Manages key functions within the organisation, one of its departments or its subdivision
• Hires, fires, or recommends personnel actions, such as promotion and leave authorisation.
• When the senior manager does not directly supervise an employee, the function must be at a senior level within the organisational hierarchy to qualify as a senior managerial position.
• Exercises responsibility over the day-to-day operations of the activity or function under the employee’s authority

In executive and managerial positions, employees are generally responsible for organising, directing, or controlling the business activities of one of its divisions. They typically perform their duties independently or through middle managers’ support.

An example of an employee who manages a particular function is the Vice President of Marketing. An employee who holds this function oversees the department’s marketing strategies and efforts.

Senior employees perform tasks that often involve the formulation of policies and guidelines for the business.

Employees with Specialized Knowledge Capacity

The duties of an intra-company applicant require specialized knowledge. An ICT applicant with Specialized Knowledge must demonstrate a high degree of both the following:

• Knowledge at an advanced level of expertise and
• Proprietary knowledge of the company’s product, service, research, equipment, techniques, or management.

According to the IRCC, proprietary knowledge is company-specific expertise related to the company’s products and services. It means the business keeps the knowledge intact and has not divulged necessary specifications that may allow others to copy and compete against the products and services.

Some occupations that may require proprietary knowledge are scientific researchers, engineers, computer programmers and systems analysts, financial auditors and accountants, and marketing specialists.

On the other hand, an ICT applicant can prove an advanced level of expertise by demonstrating substantial experience in the field.

Documentary Evidence of Specialized Knowledge

An applicant must provide evidence of meeting the IRCC standard regarding the definition of specialised knowledge. Documentary evidence may include but is not limited to the following:

• A resume and reference letters
• Letter of support from the company
• Job descriptions outlining the level of training
• Years of experience in the particular field
• Degrees and certifications obtained
• Evidence of publications and awards
• A detailed description of the work to be performed in the Canadian branch.

Moreover, despite the temporary employment in Canada, the applicant remains an employee of the parent company, working under its direct and continuous supervision.

Occupation

The visa officer determines whether the position is listed under the National Occupational Classification (NOC).

Typically, officers use the NOC system to assess the job category and determine the expected responsibilities of the foreign worker in Canada. The intra-company transfer position in Canada must be under a NOC level similar to the applicant’s home position or higher.

The visa officers will also use the occupational classification to determine if the salary reflects specialised knowledge. And while the IRCC does not require specialised knowledge applicants to meet specific NOC criteria, they are in an excellent position if they can prove that their expertise belongs to high-skilled NOC codes.

Education

The applicant must provide proof of educational credentials if the position requires a specific level of education.

Experience

The officer considers various factors in assessing the experience level of an intra-company transferee applicant under the specialised knowledge category. The officer is likely to look into the following elements:

• Applicant’s years of experience with the parent company
• Applicant’s years of experience in the industry
• The duration of experience required actually to acquire the said level of specialised knowledge

Generally, employees develop specialised knowledge the longer their experience in the company and the industry. However, even a foreign worker with only one 1-year of experience with the parent company may still qualify under the specialised knowledge category.

The applicant must demonstrate a comprehensive knowledge of the particular facet of the business. The foreign worker may have acquired expertise through work experience and studies in the appropriate field.

Overview

Business persons from the U.S. and Mexico may benefit from the NAFTA work permit if they want to work in Canada. Under this permit, the business person may enter Canada to provide pre-arranged professional services to a Canadian company.

Temporary Entry for Business a Person

The NAFTA professional work permit applies to selected business persons seeking temporary entry to Canada. The permit does not affect plans to seek permanent residency, as the IRCC issue the work permit assuming that the applicant does not intend to establish Canadian permanent residence.

According to the IRCC, temporary foreign workers under NAFTA may work in a temporary or permanent position in Canada. However, the IRCC clearly expressed that people planning to immigrate to Canada may not use NAFTA to stay in Canada indefinitely.

Admission Decisions

The visa officers assess all applicable mechanisms and requirements for temporary entry of U.S. and Mexican citizens into Canada. The officer will decide considering the main objective of NAFTA, which is to facilitate the trading relationship between Canada, Mexico and the U.S.

Remember that a U.S. or Mexican citizen who does not qualify under the provisions of NAFTA may still be eligible under other conditions governing temporary foreign workers. They may want to see if they qualify under the General Agreement on Trade in Services (GATS) or Other Free Trade Agreements (FTAs).

Duration of Work Permits

The IRCC typically grants an initial one-year work permit duration for intra-company transferees. However, most IAS clients were granted two years for their work permits, saving their employers time and money from re-submit an application for the same employee.

The work-permit holder and the company must demonstrate the following if they wish to extend or renew the work permit:

• The Canadian and foreign parent company still maintains a qualifying relationship.
• The new office has engaged in the legitimate and continuous delivery of goods or services in the past year
• The new Canadian office currently employs a staff.

Visa officers often refused a NAFTA ICT application due to insufficiency of documents. For example, the parent and subsidiary company failed to sufficiently demonstrate the relationship between them or an applicant’s job duties didn’t match the North American Industry Classification System (NAICS) code for their position.

To avoid having your application denied, take note of the following tips:

1. Include all required documents. The documents needed may vary depending on the program you are applying for. Still, generally, you will need to submit evidence of your citizenship, proof of employment offer or contract, and documentation demonstrating that you meet the qualifications for the position.
2. Make sure that your job duties match your occupation. Your job duties should align with the occupation description in the NAFTA list.
3. Be prepared to show ties to your home country. Visa officers will want to see that you have strong ties to your home country and will return there after your stay in Canada. This may include, but is not limited to, documentation such as property ownership, family ties, and financial assets.

4. Have a detailed employment offer or contract. Your employment offer or contract should outline your job duties, salary, and other terms and conditions in Canada.
5. Prove the relationship between the parent and subsidiary companies. Include documentation such as business licenses, articles of incorporation, and tax returns.
6. Have a detailed employment contract. The employment contract should include information about your job duties, salary, and other terms and conditions of employment.
7. Be prepared to show ties to your home country. Visa officers may want evidence of strong ties to your home country, such as property ownership, family ties, or ongoing business interests.
8. Be prepared to show that you will comply with the terms of your visa. Visa officers may want evidence that you have enough financial resources to support yourself during your stay in Canada.
9. Be honest and upfront about your application. Do not try to hide any information or misrepresent any facts, as this will only result in a denial of your application.

Submit necessary documents, but do not include unrelated documents in your application. Focus on providing complete and well-organised evidence to make it easier for the visa officer to assess and process your application.

Overview

The North American Free Trade Agreement (NAFTA) was a 1994 agreement between the U.S., Mexico, and Canada. The three countries created this free trade agreement to liberalise cross-border trade by abolishing tariffs and other trade barriers.

The NAFTA paved the way for a two-sided agreement establishing common standards regarding labour rights, workplace safety, and environmental protection. One of the goals of this agreement is to prevent enterprises from relocating and possibly exploiting lower salaries and looser business regulations in another country.

Before NAFTA, Canada and the U.S. had an established Free Trade Agreement (FTA). The two countries included Mexico under NAFTA to encourage increased economic activities among North America’s three major economic powers.

What Became Possible with NAFTA?

• NAFTA clears the way for temporary entry of citizens from the U.S., Canada, and Mexico, provided they are business individuals engaged in the trade of goods and services or involved in investment activities.
• NAFTA eliminates the need for all business people covered by the agreement to secure a Labour Market Impact Assessment.
• Under the agreement, a business visitor may not need to book a work permit.
• NAFTA expedites the application process of professionals and intra-company transferees. NAFTA work permit applicants may apply at a Canadian visa office prior to arrival or submit their application at the port of entry (POE).

The UMSCA Replaced NAFTA

The United States-Mexico-Canada Agreement (USMCA) replaced NAFTA in July 2020. The labour mobility provisions of NAFTA will continue under the UMSCA. Some business persons and skilled professionals entering Canada remain exempt from securing a positive Labour Market Impact Assessment (LMIA).

While USMCA altered several facets of NAFTA, the new agreement did not affect Canada’s requirements and processes for acquiring an intra-company transfer permit. However, additional guidelines and compliance requirements may arise as developed. For example, the three countries created the NAFTA before the rise of the technology industry, and updates are most likely to cover important technology positions.

The experienced immigration lawyers at IAS can help applicants for intra-company transfers to Canada navigate the possible changes and updates to the UMSCA provisions.

Our immigration lawyers can provide up-to-date information on how the agreement may affect an individual’s case and help prepare and submit relevant documentation. Having an experienced lawyer on your side can make all the difference regarding a successful application.

Four Categories of Business Persons Under the NAFTA

The four categories of business persons under NAFTA include the following:

• Business visitors- Business visitors are authorised to enter Canada to carry out business-related activities without securing an LMIA and a work permit. Under NAFTA, people engaged in international business activities that reflect the different business cycle components may qualify as business visitors.
• Professionals- Professional employees may enter Canada to provide pre-arranged professional services they are qualified for.While they are not required to submit an LMIA, they must secure work permits. These professionals must enter Canada as salaried employees of the Canadian company.
• Traders and investors- Traders and investors, may already engage in substantial trade between the U.S., Mexico, and Canada. Investors committed to investing substantial capital in Canada may also qualify under the NAFTA agreement. Applicants under this category must hold a supervisory or executive capacity position or a role that requires applying essential skills.
• Intra-company transferees- Intra-company transferees are employees who hold managerial or executive positions at an American or Mexican enterprise. Employees with specialised knowledge transferred to Canadian companies or its affiliate to provide their expertise may also qualify under this category.

LMIA Exemption

The employer is not required to secure an LMIA under the intra-company transfer program. The non-LMIA requirement can facilitate securing a work permit and the transfer of the applicant to the Canadian enterprise.

Generally, an employer seeking to hire a foreign worker must secure a Labour Market Impact Assessment (LMIA). However, the process of securing an LMIA can be challenging for employers.

To obtain this document, employers must demonstrate that they have actively recruited Canadian citizens or permanent residents for the position in question but could not find qualified candidates. They must then show that the foreign worker will not displace any Canadian workers and that their employment will benefit the Canadian economy.

Quick Work Permit Processing

The intra-company transfer program offers a quicker processing time for work permits, which can take as little as two weeks. This program significantly benefits companies and workers who must begin their assignments quickly.

In addition, the program offers other benefits, such as easier entry into Canada and the ability to apply for permanent residency after working in the country for a certain period. Overall, the NAFTA-Intra company transfer program is a valuable option for those looking to relocate to Canada for work.

Low Investment Requirements

The intra-company transfer program requires minimal costs for the applicant and the company. Costs associated with the program are limited to those necessary to obtain a visa and travel to Canada. The minimal cost makes the program an attractive option for companies looking to send employees to Canada at a minimal cost.

The minimum investment requirements also mean less risk in applying for the NAFTA-Intra company transfer program. Companies can apply for the program without making a significant financial commitment upfront. Companies can use the program to test the waters and see if it fits their needs.

Overall, the NAFTA-Intra company transfer program is a low-cost and low-risk option for companies looking to send employees to Canada. The program offers several advantages over other visa programs, which make it an attractive option for many businesses.

Transfer of Highly-skilled Employees to a Canadian Affiliate

The intra-company transfer program is essential for companies operating in NAFTA countries. It allows them to move highly skilled personnel between affiliates to meet business needs. This flexibility is crucial for businesses that rely on highly skilled workers to maintain their competitive advantage. In addition, the program provides an opportunity for these workers to contribute to the Canadian economy through their skills and specialised knowledge.