Legal news and trends for Canadian in-house counsel and c-suite executives
Issue link: https://digital.canadianlawyermag.com/i/50895
FEATURE immigration lawyer with Petrykanyn Cullen LLP. "Companies oſten 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 oſten brought in for training and to work on customer-related proj- ects, are common in the technology industry, says Barry Fisher, vice president, general counsel, and corporate secretary of SAP Canada Inc., a business soſtware solutions company. But deal- ing 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 pro- gram will, of necessity, take them to different parts of the opera- tion elsewhere in the world. At some point, legal depart- ments need to make a strategic decision based on the volume of immigration-related work. "Either you have full-time, dedicated in- ternal resources to handle matters, or you can take the opposite deci- sion and say, 'This is not an area of our core competence,' and it's actu- ally more effective for us to deal with this externally." While SAP's legal staff used to ing 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 em- ployees 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 for- eign 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 "Companies often spend a lot of money moving a family from outside into Canada. tackle immigration matters them- selves, in tandem with Canadian outside counsel, the company no- ticed the workers tended more fre- quently to be coming from China and India, rather than from the U.S. The company decided to have a single international firm, Frago- men Del Rey Bernsen & Loewy LLP handle them all. "In inter- national 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 immi- 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." — JOHN PETRYKANYN, PETRYKANYN CULLEN LLP transfer of their expertise to Cana- dian business. The general qualifying criteria includes that the transferee will be working for a branch, subsidiary, or affiliated company of a multi- national company, Also that the transferee is taking a position in an executive, managerial, or "spe- cialized-knowledge" capacity. Fi- nally, 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 cri- teria doesn't oſten 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 book- keeper should demonstrate the company's inventory system is unique. "The criteria are specific and they are well defined," says gration 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 train- 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 Citizen C ANADIAN Lawyer INHOUSE OC T OBER 2008 9