A Guideline for Canadian Work Permit

//A Guideline for Canadian Work Permit

How to receive a positive Labour Market Impact Assessment (LMIA)

 This guideline provided based on Canada Immigration Citizenship official website, “Hire a temporary worker through the Temporary Foreign Worker Program” online: http://www.cic.gc.ca/english/work/employers/lmo-basics.asp

 Note) some work categories are exempt from the LMIA process. See Citizenship and Immigration Canada’s (CIC) How to Hire a Temporary Foreign Worker guide)

As an employer, you must apply for a Labour Market Impact Assessment (LMIA) before you can hire a Temporary Foreign Worker (TFW). A positive LMIA will show that:

  • there is no Canadian worker available to do the job
  • there is a need for the foreign worker to fill the job you offer
  • hiring a TFW will not negatively affect the Canadian labour market

How to apply for a Labour Market Impact Assessment

1. Refer to the National Occupational Classification (NOC) system to determine the skill level of the occupation. The NOC is Canada’s nationally accepted system for organizing job titles into occupational group descriptions, each of which has a four-digit code. This coding is used to classify occupations according to skill type (i.e., the nature of the work performed) and skill level (i.e., education or training required). To learn more, review the NOC 2011 Matrix, which provides an overview of the entire occupational classification structure based on skill levels and skill types. You may also wish to watch our NOC video tutorial to learn more about NOC codes and the NOC 2011 matrix.

2, Meet minimum advertising requirements. Employment and Social Development Canada/Service Canada (ESDC) reserves the right to require alternative or additional advertising if it believes that broader advertisement would find qualified Canadians or permanent residents.

3, Meet or exceed the prevailing wage rate for the position. Prevailing wage rate is identified as the average hourly wage for the requested occupation in the specified geographical area.

4. Special conditions apply if you hire foreign workers in seasonal agriculture, live-in caregivers and occupations requiring lower levels of formal training (NOC C and D; review the NOC 2011 Matrix).

5. Submit an application for an LMIA to Service Canada. You can submit this application before identifying the Temporary Foreign Worker. LMIA application can be submitted 6 months prior to the anticipated job start date.

6. Employers applying for an LMIA can use the Temporary Foreign Worker (TFW) Web Service (online); or paper application form (by mail or fax). Employers applying for occupations related to on-farm primary agriculture, specifically National Occupational Classification (NOC) codes 8251, 8252, 8253, 8254, 8256, 8431, 8432 and 8611, must apply using the paper LMIA Application Form (EMP5602).

7. Employers must sign and send the completed application accompanied by all required documentation to the Service Canada Centre responsible for processing applications in their region.

A complete application means that employers have:

  • filled out all of the fields in all of the necessary forms;
  • included all of the required documentation;
  • signed the forms where required; and
  • submitted the fee payment with the application.

8. If Service Canada approves the job offer, send a copy of the LMIA confirmation letter to the foreign worker. Advise the foreign worker to apply for a work permit from CIC.

9. CIC must be satisfied that the foreign worker is qualified and meets certification and licensing requirements for regulated occupations in Canada.

Online application:

The TFW Web Service reduces the paper burden and speeds the processing of LMIA applications. In addition, employers using the Web Service will have the opportunity to:

  1. have an online account where they can update their profile information;
  2. complete and submit online LMIA applications;
  3. create and assign secondary representatives, as needed, to assist with completing the applications;
  4. attach files instead of mailing the required documentation;
  5. receive electronic messages from Service Canada regarding their application (e.g. missing documentation);
  6. monitor the status of their LMIA applications

Paper application:

The following documents must be completed, signed (where applicable), and submited:

  1. LMIA Application Form (EMP5602)
  2. Schedule A – Appointment of a Third-party Representative (EMP5575), (if applicable).
  3. Schedule B – Impact on the Canadian Labour Market (EMP5578), (if applicable).
  4. Schedule E – Establishing the Cap for a Work Location (EMP5597), (if applicable).
  5. Proof of Business Licence or Documentation (if applicable).
  6. Proof of provincial/territorial registration for employers (if applicable).
  7. Proof of provincial/territorial registration for third-party representatives/recruiters (if applicable).
  8. Proof of recruitment (e.g. copy of advertisement and information to support where, when and for how long the position was advertised).
  9. Employment Contract

If an application is submitted and it is not complete, Service Canada staff will inform the employer that the application will not be processed. Incomplete applications and supporting documents submitted with the application will not be retained or returned to the employer. As a result, employers are advised to submit copies, not original documents.

Requirements

  1. Processing fee of $1,000 for each position requested (e.g. $1,000 x number of positions=total payment 

Note: The LMIA processing fee does not apply to occupations related to on-farm primary agriculture such as:

  • farm managers/supervisors and specialized livestock workers,
  • nursery and greenhouse operators and managers,
  • general farm workers,
  • nursery and greenhouse workers and harvesting labourers (specifically National Occupational Classification (NOC) codes 8251, 8252, 8253, 8254, 8256, 8431, 8432 and 8611).
  1. Wages, working conditions and occupations: Employers applying for a Labour Market Impact Assessment (LMIA) must pay the TFW:
  • at a minimum, the posted prevailing wage for the occupation and work location where the TFW will be employed; or
  • a wage that is within the same wage range that they are paying their current employees working in the same occupation and same work location, if this range is higher than the prevailing wage. Employers must refer to the median wage published on Job Bankto determine the prevailing wage.

Step-by-step process to determine the prevailing wage of the position:

Step 1) Determine if the available position is unionized or non-unionized,

  • If the position is unionized, proceed to the Unionized positions section.
  • If the position is non-unionized, proceed to step 2.

Step 2) Use the job title of the available position and conduct a search on Job Bank to determine the median wage for the occupation and work location where the TFW will be employed:

  • If the median wage is available on Job Bank, proceed to step 3.
  • If the median wage is listed as “N/A” for the local area (economic region) where the work is located,

Step 3) Determine if there are any workers currently employed in the same occupation and work location where the TFW will be employed.

  • If yes, proceed to step 4.
  • If no, proceed to the Prevailing wage section.

Step 4) Determine the wage range paid to the current employees working in the same occupation and work location where the TFW will be employed.

  • If the wage range paid to these workers is higher than the prevailing wage on Job Bank, employers must pay the TFW a wage that is above the prevailing wage and within the wage range.
  • If the wage paid to these workers is lower than the prevailing wage on Job Bank, proceed to the Prevailing wage section.

Unionized positions

Employers hiring TFWs for available positions which are part of a union must advertise and offer the same wage rates as those established under the collective agreement.

 

Prevailing wage

Under the Temporary Foreign Worker Program, the prevailing wage rate is identified as the median hourly wage (or annual salary as published on Job Bank) or higher for the particular occupation and work location.

 

Working conditions

Canadian law protects all workers in Canada, including TFWs. The exploitation of a TFW is considered a violation of Canadian laws and human rights.

 

Occupations

Employers cannot force any TFWs to perform duties for which they were not hired or trained (e.g. if an employer submits an application to hire a TFW as a welder, the duties given to the worker must correspond to that occupation and not those associated with a janitor)

 

Recruitment and advertisement

Employers are required to conduct recruitment efforts to hire Canadians and permanent residents, before offering a job to TFWs.

 

  1. Cap on Low-wage Positions

Employers who are hiring TFWs and offering a wage that is below the provincial/territorial median hourly wage will be subject to a 10% cap on the proportion of low-wage TFWs.

 

Note: Exemptions to the Cap. Exemptions apply to employers who are hiring TFWs for:

 

  1. On-farm primary agricultural positions such as farm managers/supervisors and specialized livestock workers (NOC 8251, 8252, 8253, 8254 and 8256); and general farm workers, nursery and greenhouse workers and harvesting labourers (NOC 8431, 8432 and 8611)

 

  1. Caregiving positions in a private household (NOC 3152, 3233, 3413, 6471 and 6474); and health care facility (NOC 3152, 3233, 3413 and 6471).

 

  1. positions where they are submitting an application to exclusively support a TFW’s permanent residence under an Express Entry program;

 

  1. low-wage positions and have fewer than 10 employees nationally, including the vacant positions they are applying to staff with TFWs;

 

  1. highly mobile or truly temporary positions that are no more than 120 calendar days in length; this duration could be extended on a case-by-case basis if an employer can demonstrate that their peak season, project or event operates beyond 120 days.
    • Highly mobile is defined as a workforce that regularly crosses inter-jurisdictional boundaries (e.g. provincial, territorial and/or international) as part of the business’s ongoing operations.
    • Truly temporary is defined as a specific short-term period or singular event and the position will not be filled after the worker leaves the country.

 

  1. employers in seasonal industries hiring TFWs in low-wage seasonal positions that are no more than 180 calendar days in length (seasonal is defined as when both the industry and the occupation experience significant fluctuations in labour demand between “peak” and “off-peak” periods, usually occurring on or around the same dates every year). This exemption can only be used one time, per work location, for applications received on or after February 19, 2016, and no later than December 31, 2016.

 

 

Note: Employers, who do not qualify for an exemption, must complete the Schedule E – Cap for Low-wage Positions form and submit it along with their LMIA application form. Employers may be asked to provide documentation, such as payroll records, to support the information provided.

 

  1. Language restriction

 

A distinct language assessment factor has been introduced as subsection 203 (1.01) of the Immigration and Refugee Protection Regulations (IRPR). As a result, English and French are the only languages that can be identified as a job requirement both in LMIA applications and in job advertisements by employers, unless they can demonstrate that another language is essential for the job.

 

Note: The language restriction does not apply to positions related to on-farm primary agriculture such as: farm managers/supervisors and specialized livestock workers, nursery and greenhouse operators and managers, general farm workers, nursery and greenhouse workers and harvesting labourers (specifically National Occupational Classification (NOC) codes 8251, 8252, 8253, 8254, 8256, 8431, 8432 and 8611

 

  1. Education, training and experience

 

Employers are responsible for ensuring that the TFWs being hired have all the training, qualifications and experience required to successfully and safely perform the job duties of the position for which they are hired. TFWs being hired for:

  • lower-skilled occupations may require a certain amount of experience, short work demonstrations, on-the-job training, or no formal educational requirements; and
  • higher-skilled occupations may require a post-secondary education (e.g. university degree, college diploma or apprenticeship training).

 

Note: Regulated occupations

Employers hiring a TFW in regulated occupations in Canada must ensure that arrangements are made with the appropriate regulatory body for the certification, registration or licensing of the TFW. A “regulated” occupation is one where a professional or regulatory body has the authority to set entry requirements and standards of practice that lead to a certification, registration or licence (e.g. doctors, engineers, nurses, skilled trade occupations with compulsory certification).

Immigration, Refugees and Citizenship Canada (IRCC) will consider whether the TFW has the necessary qualifications to perform the work in Canada before issuing a work permit.

 

  1. Transportation

Employers must always pay for the transportation costs (e.g. plane, train, boat, car, bus) of the TFWs to the work location in Canada and back to their place of permanent residence. The cost for transportation to Canada must be paid up-front by the employer to ensure that it is not part of any negotiations related to the employment contract. This process helps protect TFWs, who may be tempted to accept alternative travel arrangements in return for a job offer.

Note: The employer is still responsible for the transportation costs, but the TFW will be travelling sooner than originally anticipated.

Employers must keep, for a minimum of 6 years, documentation:

  • showing efforts made to reach the TFW; and
  • of all transportation costs paid (e.g. invoices, receipts, copies of flight itineraries, tickets, boarding passes)

This information may be required as proof if employers re-apply for a subsequent LMIA or if they are selected for an inspection.

  1. Housing

Employers must:

  • ensure that suitable and affordable accommodation is available to the TFW, or
  • provide the worker with suitable and affordable accommodation, if necessary.

 

Note: The employer may be required to provide proof (e.g. newspaper ads) that affordable housing is available in the community where the TFW will be employed.

  1. Health and Workplace Safety
  1. Health insurance: Employers must always pay for the TFW’s private health insurance.
  2. Workplace safety: Employers must arrange and pay for workplace safety insurance coverage
  1. Employment contract

The employer must prepare and sign an employment contract outlining the:

  • job duties;
  • wages;
  • working conditions (e.g. hours of work);
  • terms and conditions related to:
    • transportation costs;
    • accommodation; and
    • health and workplace safety.

Note: Although employers are not required to use the contract template provided, they must ensure that the contract used, contains all of the mandatory information and clauses. The use of an alternative contract may delay the processing of the application, as ESDC/Service Canada will need to conduct a thorough comparative assessment of the contract submitted to ensure that it contains all the requirements.

  1. Business licence or documentation

All employers applying to the Temporary Foreign Worker Program (TFWP) must be actively engaged in the business where the TFW will be employed. Employers must have an operating/functioning business, providing either a good or service related to the job offer made to the TFW in Canada.

 

New employers hiring a TFW must always submit one document which supports their active engagement in the business. Documentation which supports an employer’s active engagement includes:

 

  1. business licence (where applicable and if first LMIA application);
  2. business registration or legal incorporation documents (if first LMIA application);
  3. Canada Revenue Agency (CRA) documents (where applicable and if first LMIA application) including:

 

  1. T2 Schedule 100 Balance Sheet Information (for corporations only – 2 most recent returns filed)
  2. T2 Schedule 125 Income Statement Information (for corporations only – 2 most recent returns filed)

 

  1. attestation by a lawyer, notary public or chartered accountant, confirming that the employer is engaged in a legal business that provides a good and/or service in Canada and that the business is in good financial standing and will be able to meet all financial obligations to any TFWs hired (for sole proprietorships/partnerships);
  2. a formal letter from a legal business confirming the existence of a contract for a good and/or service with the employer applying for an LMIA;
  3. commercial lease agreement (with the financial information redacted/blackened out);
  4. workplace safety and insurance (e.g. workers compensation board) clearance letter (if applicable);
  5. Employment Agency Business Licence

 

Provincial requirements and/or documentation:

 

  1. Union consultation, although it is not a mandatory requirement, but recommend it if the position being filled by the TFW is unionized.

 

  1. Third-party representatives and recruiters

Employers do not need to use the services of a third-party representative or recruiter to apply for a foreign worker.

 

 

  1. Variations to the advertisement requirements

There are variations to the recruitment and advertisement requirements for specific occupations and in particular provinces/territories.

 

A job posting is an announcement of an employment opportunity in a public medium such as in newspapers, on job posting websites, etc. It provides a broad exposure of the vacancy to Canadian and permanent residents who would be potential candidates for the position.

 

To meet the minimum advertising requirements set by the Program, employers must advertise:

 

  1. On the Government of Canada’s Job Bankor its provincial/territorial counterpart.
  • The advertisement must be posted for a minimum of 4 consecutive weeks starting from the first day the ad appears and is accessible to the general public. The advertisement must be posted during the 3 months prior to the employer applying for an LMIA.

 

  • The advertisement must remain posted to actively seek qualified Canadians and permanent residents until the date a positive or negative LMIA is issued.

 

Note) Employers may choose not to use the Job Bank or its provincial/territorial counterparts because it is not:

  • considered an effective method of recruitment for the particular position being recruited; or
  • permitted as the positions do not meet the Job Bank’s terms of use policy and therefore cannot be posted (e.g. advertisements for fee for service physicians).

 

  • Using 2 or more additional methods of recruitment consistent with the normal practice for the occupation. Employers can choose 1 or more recruitment methods among these:
    • print media (local newspapers, job boards, youth magazines etc.); and
    • general employment websites (workopolis.com, monster.ca, etc.).

 

  1. The advertisement must include the:
    • Company operating name
    • Business address
    • Title of position
    • Job duties (for each position, if advertising more than one vacancy)
    • Terms of employment (e.g. project based, permanent position)
    • Wage
    • Benefits package being offered (if applicable)
    • Location of work (local area, city or town)
    • Contact information: telephone number, cell phone number, email address, fax number, or mailing address; and
    • Skills requirements: Education and Work experience
  1. Proof of recruitment and advertisement activities. The proof must include: a copy of the advertisement and information to support where, when and for how long the position was advertised. Records of the employers’ efforts must be kept for a minimum of 6 years. 

What happen after the LMIA application?

Employment and Social Development Canada (ESDC)/Service Canada will assess the Labour Market Impact Assessment (LMIA) application submitted by the employer to determine what impact hiring a TFW would have on Canada’s job market. Based on the application and the documents received, the Department will issue a positive or negative LMIA.

LMIA Process

LMIA applications go through a systematic assessment process to

  1. Verify if the employer is eligible
  2. Verify the consistency of the job offer with federal-provincial-territorial agreements.
  3. Assess the genuineness of the job offer. The assessment is based on whether:
  • Employer is actively engaged in the business related to the job offer;
  • job offered to the TFW is consistent with the employment needs of the employer;
  • employer can fulfil the terms and conditions of the job offer;
  • employer and the third-party representative is compliant with the relevant federal-provincial-territorial employment and recruitment legislation;
  1. Assess the language requirement of the job offer, to ensure that English and French are the only languages identified as a job requirement, unless employers can demonstrate that another language is a bona fide requirement for the job.
  2. The impact of hiring a TFW on the labour market including:
      • wages and working conditions offered;
      • occupation in which the TFW will be employed;
      • employer’s recruitment and advertisement efforts;
      • benefits to the labour market;
      • consultations, if any, with the appropriate union; and the
      • effect on the settlement of a labour dispute.
  3. Assess previous job offers that an employer has made to a TFW:
  • Did the employer employ a TFW in the last 2 years?
  • Did the employer apply for and receive a positive LMIA  in that position?

Result: Positive LMIA or Negative LMIA

  • ESDC/Service Canada issues a negative LMIA letter if the employer does not meet all the TFWP’s Requirements.
  • The employer will receive a letter confirming the approval of the LMIA application:
  • LMIA will not include the names of the TFWs. However, it provides specific details about the job offer, such as the wages, working conditions and occupations as well as a system file number. The names of the workers will appear in Annex B which is intended for the employer’s records only, and is NOT to be shared with the TFW as it is not required for the purposes of applying for a work permit.
  • It is the employer’s responsibility to send a copy of this letter to the TFW; and ask the TFW to apply to IRCC for a work permit. The TFW must include with the work permit application a copy of the positive LMIA letter signed by both the employer and the worker.
  • If the job is located in Quebec, the employer must send to the TFW a copy of the positive LMIA letter issued jointly by ESDC and the ministère de l’Immigration, de la Diversité et de l’Inclusion(MIDI). Once Quebec Certificate of Acceptance issued by MIDI, employer must ask the TFW to submit this documentation along with the work permit application to IRCC.

How can changing a worker name on a positive LMIA?

Employers who need to change the name of a TFW on a positive LMIA must send their written request to Service Canada, either by fax or mail.

Processing times: it varies depending on the number of names to be changed:

  • 10 names or less – request must be received at least 15 business days prior to the LMIA expiry date
  • more than 10 names – request must be received at least 20 business days prior to the LMIA expiry date

Note: Name changes are not performed when:

  • The position is in Quebec
  • The application is for permanent resident or dual intent
  • The application is for the Seasonal Agricultural Worker Program (SAWP)
  • The work permit application has been submitted, or the work permit has been issued

After arrival under Work Permit:

  • Employers are not allowed to take away the TFW’s identification documents such as passport, work permit or other identification.
  • A new LMIA required if employers anticipate that their need for TFWs will continue beyond the period covered by the work permit. The new LMIA application should be sent at least 4 months (not more than 6 months) prior to the expiry of the work permit to process the work permit extension.
  • 4-year cumulative duration limit a TFW can work in Canada, once the 4-year limit has been reached, the TFW will have to wait 4 years before being eligible to work in Canada again.

Exemption)  TFWs being hired under this stream for managerial occupations (NOC zero) and for professional and scientific occupations where the NOC A, meaning the position requires a university degree (bachelor’s, masters or doctorate), are exempt from the maximum cumulative duration.

Can a positive LMIA be revoked?

An LMIA may be revoked if it has not yet expired, work permits or permanent resident visas have not been issued by IRCC, and if one or more of the following circumstances apply.

  1. The employer has provided materially false or misleading information.
  2. New facts or information are brought forward after a positive LMIA has been issued, that would have changed the assessment of the application, resulting in a negative LMIA.
  3. The opinion was based on an unintentional error as to some material fact.

 

 

 

2016-05-11T10:02:24+00:00