Temporary transfer

It’s a rainy, dreary night, and the mud-splattered black SUV finally pulls away from the Canadian border. The child in the back has thankfully cried herself to sleep in her car seat, amidst a clutter of sippy cups, overturned picture books, and plastic toys.

Meanwhile, the senior executive sits in the front passenger seat after delivering a terse “You drive” to her spouse. She’s speaking loudly into her phone, as if that will somehow improve her poor cellphone reception.

“No,” she says. “They didn’t let us through. Something’s wrong with the documentation you couriered. Listen, we’ve got to get a hotel and we’ve been on the road since six this morning. I won’t be able to make it in tomorrow. I know — but the project’s just going to have to wait. Call me back in an hour.”  

On the other end, the line goes dead — and, somewhere, a Canadian in-house counsel belatedly realizes she should have consulted an immigration law specialist with respect to the intracompany transfer.

“If someone very senior has shown up at a port of entry from the States, for example, they’ve driven up with their family, and they’re in their van, and they’re coming up, and all of a sudden they’re sent back. . . . I wouldn’t mean to frighten in-house counsel, but these are sometimes the reasons why I get calls,” says John Petrykanyn, a Toronto immigration lawyer with Petrykanyn Cullen LLP.

“Companies often spend a lot of money moving a family from outside into Canada. They work out housing, they help in finding schools, they ship possessions — they spend a lot of money and a lot of effort doing this. And sometimes . . . they don’t spend as much attention on the issue of visas.”

Intracompany transfers, where foreign workers are often brought in for training and to work on customer-related projects, are common in the technology industry, says Barry Fisher, vice president, general counsel, and corporate secretary of SAP Canada Inc., a business software solutions company. But dealing with them is a fact of life for any company that grows over a certain size, he adds. 

Simply put, managers in an international company need to gain international experience, and a standard development program will, of necessity, take them to different parts of the operation elsewhere in the world.

At some point, legal departments need to make a strategic decision based on the volume of immigration-related work.

“Either you have full-time, dedicated internal resources to handle matters, or you can take the opposite decision and say, ‘This is not an area of our core competence,’ and it’s actually more effective for us to deal with this externally.” 

While SAP’s legal staff used to tackle immigration matters themselves, in tandem with Canadian outside counsel, the company noticed the workers tended more frequently to be coming from China and India, rather than from the U.S. The company decided to have a single international firm, Fragomen Del Rey Bernsen & Loewy LLP handle them all.

“In international areas, it’s probably more effective to deal with it externally than internally, just because there are so many different jurisdictions. And to have people specifically on site that can be called upon to help process the matter makes it more efficient for us to turn to outside counsel to do that, even though we may have some internal competence. . . . It’s not the most effective use of our internal resources,” Fisher says.

“Where you have counsel that are not specializing in immigration law, you could well get the job done,” says Jeffery Lowe, of Lowe & Co. in Vancouver, “but you might not get it done in the optimal way.” Lowe has in the past given in-house training so that HR personnel could handle routine applications on their own; however, he stresses that in-house counsel frequently come to his firm for non-routine matters or for more critical executive transfers.

The basic procedure for an intracompany transfer is relatively simple. The category is described in Citizen and Immigration Canada’s foreign-worker manual as “being created to permit international companies to temporarily transfer qualified employees to Canada for the purpose of improving management effectiveness, expanding Canadian exports, and enhancing the competitiveness of Canadian entities in overseas markets.”

Qualified transferees require work permits, just like other foreign workers, but they are exempt from providing a labour market opinion (a document showing there is a need for a foreign worker to fill the job offered and that no Canadian worker is available to do the job), as they provide significant economic benefit to Canada through the transfer of their expertise to Canadian business.

The general qualifying criteria includes that the transferee will be working for a branch, subsidiary, or affiliated company of a multinational company, Also that the transferee is taking a position in an executive, managerial, or “specialized-knowledge” capacity. Finally, that the transferee has been employed by the parent company outside Canada in a similar full-time position for one year in the past three years.

Lowe says that the general criteria doesn’t often pose a great obstacle for applicants. Most of the problems stem from the question of “specialized knowledge,” which, he says, is “unusual knowledge” and “different from that generally found in a particular industry.” It need not be proprietary or unique, but it should be uncommon. He adds that employees should take care to show this in their documentation. For example, a bookkeeper should demonstrate the company’s inventory system is unique.

“The criteria are specific and they are well defined,” says David Cohen of Campbell Cohen. “You have to make sure that each 'I' is dotted and each 'T' is crossed, or it really isn’t going to work. It’s technical and it’s doable, and if it’s done in good faith . . . there really will not be resistance from Citizenship and Immigration Canada.”
“The problems are not what you know, but what you don’t know,” says Lowe.

Processing an intracompany transfer can take as little as one day up to three months, says Cohen, who typically advises clients to “count on a couple of weeks.”  However, secondary issues can slow things down and cause problems, adds Petrykanyn, who describes the following as the “three big ones.”

Medical issues
In some cases, depending on the nationality of the employee, a medical exam may be required, which can cause delays. If the transferee and/or their family members have health issues that are likely to cause a disproportionate effect on the Canadian health-care system, there might be a further delay, as immigration officials would require additional information. Worst of all, the foreign worker may be refused a work permit altogether.

If the employee has ever been convicted of a criminal offence equivalent to a Canadian Criminal Code offence, it can cause delays or an outright bar.

 “These are things that sometimes come up at the port of entry, with the person’s application,” says Petrykanyn. “The officer may say, ‘Everything looks good, sir. Have you ever been convicted of a crime?’ And the person says, ‘Well, you know, when I was 19, there was this thing where I was in a fight.’ . . . And at that point, that’s where it can arise.”

In that situation, whether it’s a DUI or possession of marijuana, the work permit will not be issued. Once disclosed, however, special applications can be made to “rehabilitate” the employee’s prior record. The real danger arises if the employee does not disclose the prior conviction, only to see it otherwise revealed. Immigration officials have access to FBI records, among other resources. It then becomes a misrepresentation, which can bar applicants from reapplying.

Questions of criminality can be particularly troubling for in-house counsel, as employers are not generally permitted to inquire about an employee’s prior criminal record. Often a side agreement must be reached to disclose information to the employer on a need-to-know basis.

Previous problems at the border
If the employee has had problems with immigration before, it might result in delays. For example, Petrykanyn says several years ago he had an executive coming in from the U.S. who had entered into Canada 25 years ago as part of a protest.  He was detained at that time and, although he was later released, counsel needed to find out whether this was something that Immigration and Citizenship had a record of — and whether it was something that needed to be disclosed. 

“Immigration transfers are about two things,” says Fisher. “It’s an understanding of the law of immigration, and then there’s an understanding of the practicalities, the nuances, the things that are not written in the books.” In-house counsel and HR departments should keep the following tips in mind to facilitate the intracompany-transfer-application process:

Prep the transferee
It’s important to sit down with the employee and go over the supporting documents, to ensure the employee understands the application criteria and can give an informed response to questions.

“Dealing with Canada Immigration or immigration and customs officials is intimidating for many people,” says Petrykanyn. “Particularly for people coming from cultures where authority figures are more of a problem, or more difficult to deal with. So, oftentimes, people will say things they shouldn’t say, or they’ll say something they think they should say, as opposed to what the truth is. They’ll describe their job in a way that’s not accurate for some reason, or they’ll freeze — and if they misrepresent themselves, even in an innocent way, it can have ramifications.”

Understanding the immigration officials’ mandate can relieve the employees’ apprehensions, says Naseem Malik, counsel in McCarthy Tétrault LLP’s labour and employment group in Toronto. This helps them present more credibly and argue on their own behalf if an officer questions their written submissions.

Counsel should also ensure their contact information is visible on the application, he adds, so they can easily be contacted if need be.

Other steps worth considering include contacting immigration officials in advance to discuss the employee’s “hypothetical” case, or having a translator present when they arrive at the port of entry in the case of a transferee with poor English skills. Although translators won’t be allowed in any interviews, they can be helpful in the pre-interview process and in putting the transferee at ease.

Choose the venue wisely
Employees should make their point-of-entry application in the best possible place, says Malik. Although foreign nationals from most countries are required to apply at their Canadian embassy — with resultant delays — NAFTA applicants can hop on a plane and have their work permit application adjudicated on the spot at a port of entry.
Rather than a land crossing, Malik recommends a large airport, such as Toronto’s Pearson International Airport, which typically has 10 to 15 immigration officers working at any given time, due to the sheer volume of applicants they must deal with.

As a final tip, Malik cautions employees not to “venue shop” — to try and cross at one border crossing and upon rejection sneak to another one. “Immigration officials don’t look kindly on that.”

In the final analysis, says Fisher, the decision as to whether the in-house legal staff will handle intracompany transfers itself boils down to internal confidence. On a case-by case basis, Petrykanyn suggests weighing how important the worker is, and how fast the company needs them in Canada.

“If time is of the essence, if it’s important that someone come in and not be held up, then it’s probably best to pass it along,” says Petrykanyn, “There are probably issues that can be worked through by in-house counsel, or by their lawyers, but there can be delays.”

Lowe offers a financial analysis as a guideline. “Quite often the fees that we charge are a small portion of the value or the importance of the position to the company,” he says. “It could cost anywhere from about $2,500 to as much as $5,000 to bring somebody in with a work permit.

Now, if somebody’s only getting paid $20,000 a year, that’s an awful lot of money. But if somebody’s getting paid $200,000 a year, then it’s more important to get the person in now, or as close as possible to now because if you delay a week’s worth of time in getting the person over, that’s $4,000.”

Lowe suggests that smart in-house counsel will make the decision to seek outside help based on self-preservation and common sense.

“If you’re sitting there as an HR manager, and you’re responsible for bringing in certain executives, you could either try to do it yourself, or you could farm it out to counsel. If you try to do it yourself, and you succeed, that’s great; you’ve saved the company a couple thousand dollars — but you’re probably not going to see it on your paycheque. Whereas if you screw it up, that could have some serious consequences, and maybe even cost you your job.”

He adds that if in-house counsel hire a reputable immigration firm, or even a large law firm, at least the HR manager could say: “Hey, listen, I hired so and so, and paid them thousands of dollars, and if there was a problem, it’s not my problem — it couldn’t be done!”

Finally, he cautions all lawyers involved not to get caught up in what he calls the “McDonald’s approach,” where the client requests an intercompany transfer visa fast and cheap, and the lawyer says: “Yes sir, we’ll do it for you right away.”

“The best method is to have a consultation — look at the client’s background, the objectives, and then say, ‘Given what we have, what tool would work best in your situation?’”

And in the end, if something should go wrong?

“Have a good immigration lawyer that you know,” says Malik. “So you have that contact available in advance.”

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