CANADA: New Requirements for Specialized Knowledge Workers
Employers applying for work permits under the intra-company transfer stream (labour market opinion [LMO] exemption) must provide evidence of a qualifying relationship between the Canadian and foreign employer and evidence of the existence of a qualifying relationship between the employer and the temporary foreign worker. Additionally, the prospective temporary foreign worker must qualify under one of the following occupational categories: Executives and Senior Managers, Functional Managers, or Specialized Knowledge Workers.
For each intra-company transfer occupational category, a temporary foreign worker must meet specific qualifications for this LMO exemption. In the past, qualifying for the Specialized Knowledge Worker category required the temporary foreign worker to demonstrate specialized knowledge that was unique or to possess an advanced level of knowledge or expertise in the organization's processes and procedures. Typically, a Specialized Knowledge Worker would hold a position critical to the well-being of the enterprise, while not necessarily being responsible for managing employees or possessing a budgetary responsibility.
"Specialized knowledge" was previously defined as "unusual and different from that generally found in a particular industry." Advanced knowledge is defined as a complex or high level of knowledge that is not necessarily unique or known by a few individuals (or proprietary). Other factors that were considered included under which National Occupational Classification (NOC) code the position qualified, education, experience, salary, and the amount of training that would be required for a position that requires specialized knowledge.
Effective June 9, 2014, temporary foreign workers must meet new requirements to qualify under the specialized knowledge intra-company transfer LMO exemption. Now, temporary foreign workers must demonstrate a high degree of both proprietary knowledge and advanced expertise. Specialized knowledge is considered to be knowledge that is unique and uncommon. The onus is on the employer to demonstrate that the temporary foreign worker's specialized knowledge and temporary employment in Canada will play a key role in the Canadian company's competitiveness in the marketplace.
Additional new requirements under this LMO exemption category include the Canadian company's mandatory direct employment and supervision of the temporary foreign worker. The Canadian company should provide training to the specialized worker. The specialized knowledge worker may not receive any training by other employees of the Canadian company that would lead to the displacement of Canadian workers.
Finally, to qualify as a specialized knowledge worker, the employee must be paid the prevailing salary wage for the position's corresponding NOC code (dependent on location), as determined by the government's working wage website. This new requirement is based on the belief that an individual who possesses specialized knowledge should earn a salary that is consistent with such work. Therefore, the worker is entitled to the prevailing wage and generally receives an above-average salary for that position. Non-cash per diem payments for costs such as hotel and transportation are not considered as part of the overall salary calculation.
These new policy changes dramatically toughen this category and mean that many specialized knowledge professionals will no longer qualify for work permits to Canada. The new requirements are a blow to Canadian businesses relying on the specialized category for short-term transfers, client-requested integration or standardization specialists, secondments, and short-term work sharing and/or exchange programs.
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