How to Transfer a US Employee with Immigration Issues to Canada

If you’re a manager or HR professional in the U.S., you know that retaining foreign national employees can be a challenge, especially with the complexities surrounding the H-1B visa process. Many foreign workers face uncertainty due to visa denials, extensions, or quota limitations, which could put their job — and your company’s valuable talent — at risk. But there is an alternative solution that more U.S. companies are exploring: transfer a U.S. employee with immigration issues to Canada.

One key method for transferring employees from the U.S. to Canada is the intra-company transfer program (ICT), which allows established global companies to expand their operations into Canada by bringing critical personnel such as executives, senior managers, and specialized knowledge workers.

Canada remains an attractive choice for entrepreneurs and business immigrants, emphasizing its appeal as a destination for relocating companies.

Canada has a more straightforward immigration process, and many U.S. companies with global operations are leveraging this to retain foreign national talent. In this blog, we’ll walk through the key steps and options available to transfer your employee with U.S. immigration issues to Canada. We’ll also explore Canada’s welcoming immigration policies and how they can benefit both your company and the employee.

Why Transfer to Canada?

Canada offers a much more predictable and streamlined immigration system compared to the U.S. Its immigration policies are designed to attract skilled workers, and the country actively welcomes foreign talent through multiple programs. For U.S. companies, this creates an opportunity to transfer employees facing immigration issues in the U.S. to their Canadian branches or offices, allowing them to continue contributing without the stress and uncertainty of U.S. visa challenges. Canadian authorities play a crucial role in assessing and issuing work permits, ensuring a smooth transition for employees.

Understanding the Canadian labour market is crucial in relation to work permits, as intra-company transferees cannot freely enter this market without a positive LMIA decision. This highlights the regulatory landscape and the specific conditions required for international workers in Canada.

Here are a few reasons why transferring to Canada can be a great solution:

1. Faster Processing: Canadian work permits, especially under programs like the Global Talent Stream (GTS), are processed much faster than U.S. visas.
2. No Quotas: Unlike the U.S. H-1B visa, which is subject to annual quotas, Canada does not impose strict caps on work permits for skilled workers.
3. Path to Permanent Residency: Canada offers clear and faster pathways to permanent residency for foreign workers, providing more long-term stability for employees. Permanent residents in Canada enjoy long-term stability and access to various benefits.
4. Quality of Life: Canada consistently ranks high for quality of life, offering employees access to universal healthcare, affordable education, and a welcoming environment. Canadian citizens benefit from universal healthcare and other social services.

Options for Transferring Temporary Foreign Workers to Canada

There are several pathways to transfer a U.S.-based employee to Canada, depending on the employee’s role, the nature of your company’s operations in Canada, and the urgency of the move. Here are the most common options.

The Express Entry program is a pivotal pathway for individuals applying for permanent residence in Canada. It integrates into Canada’s broader economic immigration process, managed through a point-management system that favors candidates with job offers, education, and language proficiency. Another significant pathway is the Federal Skilled Worker Program, which is designed for individuals with specific professional skills seeking permanent residency.

The International Mobility Program allows employers to hire foreign workers without the necessity of considering Canadian applicants. This program addresses industry-specific labor shortages and the complexities of the temporary worker system.

1. Intra-Company Transfer (ICT) Category

The Intra-Company Transfer (ICT) program allows a foreign company to transfer employees from their U.S. office to a Canadian branch, affiliate, subsidiary, or parent company. This program is ideal for employees who hold managerial, executive, or specialized knowledge roles. Under the intra company transfer category, employees can benefit from NAFTA provisions, which often bypass the need for a Labour Market Impact Assessment (LMIA).

The role of a specialized knowledge worker is crucial in the ICT category, as it emphasizes the need for maintaining similar positions across Canadian and foreign enterprises to meet eligibility requirements.

Key requirements

• The employee must have worked for your company for at least one year in the past three years.
• The employee must be transferred to a similar role in Canada, such as a manager, executive, or someone with specialized knowledge.
• Your company must have a legal entity in Canada (a branch, affiliate, or subsidiary) to transfer the employee.

One major advantage of the ICT program is that it does not require a Labor Market Impact Assessment (LMIA), which means your company won’t need to prove that no Canadian worker can fill the position. This makes the process faster and less burdensome.

Processing time

ICT work permits are typically processed within a few weeks to a few months, depending on the specific case and region.

ICT Work Permit Process

The ICT work permit process involves several steps that foreign companies and their employees must follow to obtain a work permit in Canada. Here’s an overview of the process:

1. Determine Eligibility: The first step is to determine if your company qualifies for an ICT work permit. This involves verifying if there is a qualifying relationship with a Canadian parent company, branch, subsidiary, or affiliate. Ensuring this relationship is crucial for the application to proceed.
2. Gather Required Documents: Next, gather all necessary documentation. This includes a detailed business plan, financial statements, and proof of the employee’s qualifications and experience. Having these documents ready will streamline the application process.
3. Submit Application: Once all documents are prepared, submit the ICT work permit application to Immigration, Refugees and Citizenship Canada (IRCC). Ensure that the application is complete and accurate to avoid delays.
4. Pay Processing Fees: The application process requires payment of processing fees. Make sure to pay these fees promptly to keep the application moving forward.
5. Wait for Processing: After submission, the application will be processed by IRCC. Processing times can vary, ranging from a few weeks to several months, depending on the complexity of the application and the workload of the immigration office.
6. Receive Decision: Finally, you will receive a decision on the ICT work permit application. If approved, the employee will be issued a work permit, allowing them to work in Canada for a specified period.

By following these steps, foreign companies can successfully navigate the ICT work permit process and transfer key personnel to their Canadian operations.

2. Global Talent Stream (GTS) under the International Mobility Program

The Global Talent Stream (GTS) is part of Canada’s Global Skills Strategy, aimed at attracting highly skilled workers to fill labor shortages in critical industries, particularly in technology, engineering, and STEM fields. If your employee works in one of these sectors, GTS is a fast-track option to transfer them to Canada.

International free trade agreements also play a significant role in the GTS, providing special advantages to various countries under these treaties, which can facilitate smoother personnel transfers.

Eligibility requirements

• The employee must work in an occupation classified under the Global Talent Stream as high-demand. This typically includes software engineers, IT professionals, data scientists, and more.
• The Canadian branch of your company (or a Canadian partner) must apply for the GTS and get approval from Employment and Social Development Canada (ESDC).
• The GTS is part of Canada’s broader temporary foreign worker program, which addresses industry-specific labor shortages.

The most significant advantage of the GTS program is its processing speed — work permits can be approved in as little as two weeks.

Processing time

Two weeks or less, making it one of the fastest pathways to transfer an employee to Canada. Temporary foreign workers under the GTS can quickly fill critical roles in the Canadian economy.

3. Canada-US-Mexico Agreement (CUSMA) Canadian Work Permit

If your employee works in a profession listed under the Canada-US-Mexico Agreement (CUSMA) (formerly NAFTA), they may qualify for a CUSMA work permit. This agreement facilitates easier mobility for professionals between the U.S., Canada, and Mexico, without the need for an LMIA.

Eligible professions

• CUSMA lists specific professional roles that qualify for work permits, including accountants, engineers, scientists, IT professionals, management consultants, and more.
• The employee must have a valid job offer from your Canadian branch or a partner organization.
• Canadian citizens benefit from easier mobility and employment opportunities under NAFTA provisions.

Processing time

Work permits under CUSMA are typically processed quickly, with approvals often within a few weeks.

4. Provincial Nominee Programs (PNPs)

Canada’s provinces also have immigration programs tailored to their local labor market needs, called Provincial Nominee Programs (PNPs). If your company doesn’t have a Canadian branch but partners with businesses in Canada, you may be able to sponsor the employee through a PNP. Many provinces have streams specifically for employers looking to hire foreign workers.

Temporary foreign workers in Canada can obtain permanent resident status through the PNPs after a year of working under a specific program, provided they meet the criteria of the respective program.

Eligibility Requirements

• The employee must meet the specific criteria for the province’s program, which typically includes a job offer and relevant experience.
• Once nominated, the employee can apply for a work permit and eventually permanent residency.
• The PNPs contribute significantly to the Canadian economy by attracting skilled workers to various provinces.

Processing time

PNP processing times vary by province, but they are generally faster than federal immigration programs. Canadian companies benefit from the PNPs by gaining access to a highly skilled workforce.

How to Get Started with the Transfer Process

Transferring a U.S. employee to Canada can be a smooth process if you follow the right steps. Here’s a guide to getting started:

1. Evaluate the Employee’s Role and Skills: Determine if the employee qualifies for one of the available Canadian work permit programs. Are they in a managerial or specialized knowledge role for an Intra-Company Transfer? Do they work in a high-demand tech field for the Global Talent Stream? Identifying the right program is the first step.
2. Establish Your Canadian Presence: If your company already has a Canadian branch or affiliate, you’re ahead of the game. If not, you may need to explore establishing a legal entity in Canada or partnering with a Canadian company.
3. Consult with an Immigration Expert: The immigration laws in both the U.S. and Canada are complex, so it’s a good idea to consult with an immigration lawyer or consultant who can guide you through the process and ensure all paperwork is completed accurately.
4. Prepare the Necessary Documents: Depending on the chosen program, you’ll need to provide documents such as the employee’s resume, proof of employment, job description, and company financials. Each program has specific documentation requirements, so it’s essential to prepare these ahead of time.
5. Submit the Application: Once everything is ready, submit the work permit application. Be sure to check the specific processing times for the chosen pathway, as this will determine how soon your employee can start working in Canada.
6. Explore Permanent Residency Options: Canada offers several pathways to permanent residency for foreign workers. Once your employee is in Canada, they may be eligible to apply for permanent residency through programs like Express Entry, Provincial Nominee Programs, or the Canadian Experience Class.

Navigating Canadian Tax Laws

Canadian tax laws can be complex and challenging for foreign companies and their employees to navigate. Here are some key considerations to keep in mind:

1. Tax Residency: Determining tax residency is crucial. Factors such as the length of stay in Canada, the type of work being done, and the employee’s ties to Canada will influence tax residency status. Understanding these factors helps in complying with Canadian tax laws.
2. Tax Obligations: Foreign companies and their employees must be aware of their tax obligations in Canada. This includes filing tax returns, paying taxes, and adhering to other tax requirements. Staying informed about these obligations ensures compliance and avoids penalties.
3. Tax Credits: There are various tax credits available in Canada that foreign companies and their employees may be eligible for. These include credits for research and development, training, and hiring Canadian employees. Taking advantage of these credits can significantly reduce tax liabilities.
4. Tax Treaties: Canada has tax treaties with many countries that can help reduce tax liabilities and prevent double taxation. Understanding these treaties and how they apply to your situation can provide significant tax relief.
5. Seek Professional Advice: Navigating Canadian tax laws can be daunting. It’s advisable to seek professional advice from a tax expert to ensure compliance and to optimize tax benefits. A tax professional can provide tailored advice and help you make the most of available tax credits and treaties.

By understanding and addressing these key areas, foreign companies and their employees can effectively navigate Canadian tax laws and ensure compliance.

Path to Permanent Residence for Transferred Employees

One of the significant advantages of transferring employees to Canada is the clear and accessible pathways to permanent residence (PR). Unlike the U.S., where visa uncertainty is common, Canada offers several programs that allow foreign workers to transition from temporary work permits to permanent resident status. Permanent residence in Canada provides employees with long-term stability, access to social benefits, and the ability to eventually apply for Canadian citizenship.

Key pathways to permanent residence include:

Express Entry

A points-based system that evaluates candidates based on factors such as work experience, education, and language skills. Employees who have worked in Canada, particularly through programs like the Global Talent Stream or Intra-Company Transfer, can gain valuable points and increase their chances of obtaining PR.

Provincial Nominee Programs (PNPs)

Many provinces in Canada offer nomination programs that allow foreign workers to apply for permanent residence based on local labor market needs. Employees transferred to specific provinces may qualify for nomination, especially if they work in high-demand sectors.

Canadian Experience Class (CEC)

This program is designed for workers with Canadian work experience, making it an ideal option for employees who have been transferred and wish to stay long-term. Employees can apply for permanent residence after gaining just one year of work experience in Canada.

Offering your transferred employees a pathway to permanent residence not only helps retain top talent but also provides them with the security and benefits of living in Canada long-term, ensuring they can fully integrate and thrive in their new environment.

Conclusion

As a manager or HR professional, losing talented employees to U.S. immigration issues can be frustrating. However, transferring employees to Canada offers a viable solution that benefits both the company and the employee. Programs like the Intra-Company Transfer, Global Talent Stream, and CUSMA work permits provide streamlined pathways for transferring skilled workers to Canada, where they can continue contributing to your company’s success.

By acting proactively and exploring Canada’s immigration options, you can retain your foreign national talent and help them secure long-term stability. Achieving Canadian citizenship provides long-term benefits and stability for employees. Permanent residence in Canada offers a clear pathway to citizenship and long-term stability. The intra company transfer program is particularly strategic for businesses looking to bring critical personnel to Canada. Start by discussing the possibilities with your legal team and employees, and make Canada part of your strategy to overcome U.S. immigration challenges.

Partner with Syndesus for Seamless Transitions

Navigating employee transfers to Canada can be challenging, but Syndesus is here to help. Specializing in assisting U.S. companies, Syndesus offers tailored solutions for transferring talent, ensuring compliance with immigration and labor laws. Whether you need to establish a Canadian branch or streamline the immigration process, Syndesus provides the expertise to keep your business thriving. Consult with Syndesus to ensure a smooth transition and retain your top talent while overcoming U.S. immigration challenges.

*The content and materials available via Syndesus are for informational purposes only and do not constitute legal advice.