The General Agreement on Trade in Services (GATS) specifies Canada’s commitment about ICT Specialised Knowledge workers. It also specifies the definition of ICT Specialised Knowledge workers. According to the GATS, ICT Specialised Knowledge workers must possess:
- knowledge at an advanced level of expertise and,
- proprietary knowledge of the company’s product, service, research, equipment, techniques or management
Therefore, an ICT applicant would need to:
- Possess some specialised knowledge and,
- Meet the requirements specified by Canada’s commitment in the GATS
For this, an ICT applicant would need to demonstrate (on a high balance of probabilities):
- A high degree of proprietary knowledge and,
- A high degree of advanced expertise
Possessing advanced expertise alone or proprietary knowledge alone, would not help the applicant qualify under this exemption. Therefore, the applicants bear the entire responsibility of proving that they possess a high degree of both, proprietary knowledge and advanced expertise.
Applicants could provide documentary evidence to support their claims. Thus, they could provide documentary evidence that includes (but is not restricted to):
- A resume
- Letters of reference
- A letter of support from the company
- Job descriptions that specify:
- The level of training required
- The years of experience held by the applicant in the field
- The degrees or certifications obtained by the applicant in the field
- A list of publications and awards (if applicable) and,
- A comprehensive description of the work the worker would be performing in Canada
Situations could emerge where certain bilateral agreements contain variations of the above-mentioned definition of “specialised knowledge”. In such cases, officers would need to respect these variations. At the same time, officers would still need to ensure that applicants possess specialised knowledge.
For example, there could be a situation where officers need to assess applicants from Colombia and Peru. In such circumstances, officers would need to consult the TFW manual for additional detail. This manual would contain the definitions of “specialised knowledge”, recorded via Canada’s free trade agreements with those countries. Therefore, by referring to these TFW manuals, officers would be able to assess whether applicants from other countries do indeed, possess specialised knowledge.
Proprietary Knowledge: Proprietary knowledge denotes that a worker possesses company-specific expertise about the company’s products and / or services. Because this information is confidential and proprietary, it implies that the company has not revealed these specifications about its products and services publicly. This is to prevent other companies from duplicating the products or services offered by the company.
Advanced Proprietary Knowledge: Given this background, officers would need to check whether a worker possesses advanced proprietary knowledge or not. Therefore, for an applicant to possess advanced proprietary knowledge, the applicant would need to demonstrate the possession of:
- Uncommon knowledge about the hiring company’s products or services
- Uncommon knowledge about the hiring company’s application in international markets and,
- An advanced level of expertise or knowledge about the company’s processes and procedures, including areas like:
- Production
- Research and development
- Equipment
- Production or manufacturing techniques and,
- Management
Advanced Levels of Expertise: Officers would also need to assess whether the applicant possesses an advanced level of expertise. Possessing an advanced level of expertise denotes that the applicant possesses specialised knowledge. The individual could gain this specialised knowledge via:
- Significant Experience with the organisation and,
- Officers would need to note that “significant experience” is not defined because it is not always a meaningful indicator
- “Significant experience” denotes that the longer the experience possessed by the worker, the greater the likelihood that the worker possesses specialised knowledge
- This definition originates from Section 5.31 from Chapter FW 1
- Recent Experience with the organisation
- This takes into account all experience possessed by the worker that dates back to the last five years
The applicant would also be able to use this specialised knowledge for making significant contributions to the productivity of the employing company or firm.
When officers attempt to assess or evaluate whether an applicant possesses such expertise or knowledge, they would need to consider:
- Abilities that are unusual and different from those that are generally found in a specific industry
- Abilities that nobody could transfer easily to another individual in a short span of time
- Knowledge or expertise that must be highly unusual within the:
- Industry and,
- The host firm or hiring company
- Proprietary knowledge of such a nature that possession of it:
- Is critical to the operational business of the Canadian branch and,
- Would significantly disrupt the business of the host firm, if it were not for the applicant’s expertise
- Proprietary knowledge of a specific business process or methods of operation that are:
- Unusual or uncommon
- Not common knowledge across the organisation and,
- Not likely to be available in the Canadian labour market
For example, consider a case where an applicant possesses specific skills for implementing an off-the-shelf product. This, by itself, would not constitute:
- Having specialised knowledge or,
- Meeting the standards of specialised knowledge
The only scenario when these skills would come under the purview of possessing specialised knowledge would be in situations where:
- The product is new
- The company is making a high number of customisations to the product, thereby making it an innovative and “new” product
Therefore, officers would need to understand that the chances of an ICT applicant possessing truly specialised knowledge would be:
- Greater, if the ICT applicant has a direct contribution to the:
- Development of a new product or,
- Re-development of an existing product
- Lower, if the ICT applicant has a direct contribution to the:
- Implementation of a pre-existing product
According to the definition of specialised knowledge accepted by the CIC, specialised knowledge:
- Must be unique and uncommon
- Would only be held by a small number of a small percentage of the employees of a business firm – by definition
- Differs from having above-average or exceptional skills in that workers possessing specialised knowledge would be able to demonstrate that they are key personnel and not just highly skilled workers
In addition, officers would also need to consider the following aspects concerning the nature of the employment, when assessing an applicant. They would need to establish that:
- The host company expressly employs and directly and continuously supervises its ICT Specialised Knowledge workers
- The worker does not normally require training at the host company in the worker’s domain area of expertise, based on the nature of specialised knowledge and,
- A worker possessing specialised knowledge must not receive specialised training from other employees in a manner than ends up displacing the Canadian workers, especially given that:
- This specialised knowledge would not be readily available within the Canadian labour market and,
- This specialised knowledge cannot be easily transferred to another individual
Source: Citizenship and Immigration