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LMIA based work permit

LMIA

In most cases, a Canadian employer wishing to hire a foreign worker must first receive government approval before the hiring can take place.

This comes in the form of a LMIA, formerly known as a Labour Market Opinion (LMO).

In order to receive a positive LMIA, the Canadian government employee reviewing an application must determine that the hiring of a foreign worker will have a positive or neutral effect on the Canadian labour market. Among other factors, it must be clear that no qualified Canadians were passed up in favor of the foreign worker, and that the foreign worker will be given a salary and benefits that meet federal and provincial standards.

The LMIA process is different depending on whether the targeted employee is classified as “high-wage” or “low-wage”. Temporary foreign workers being paid under the provincial/ territorial median wage are considered low-wage, while those being paid at or above are considered high-wage. Depending on whether a prospective employee is classified as high-wage or low-wage, certain specific provisions apply.

Generally speaking, all Canadian employers must provide evidence that they have attempted to find qualified Canadian citizens or permanent residents to fill job positions before turning to foreign workers. In addition, employers may be inspected for compliance with government regulations after their employee has begun working in Canada.

High-Wage Workers

Employers seeking to hire high-wage workers must submit transition plans along with their Labour Market Impact Assessment (LMIA) application to ensure that they are taking steps to reduce their reliance on temporary foreign workers over time. High-wage workers are those earning above the median hourly wage for a given occupation in a specified region.

The transition plans are designed to ensure that employers seeking foreign workers are fulfilling the purpose of the program. This entails that they are using the program as a last and limited resort to address immediate labor needs on a temporary basis when qualified Canadians are not available, ensuring that Canadians are given the first chance at available jobs.

Certain occupations in Quebec are “facilitated”, meaning that local recruitment efforts do not need to be performed by employers as part of their applications to hire temporary foreign workers for any of the facilitated occupations.

Low-Wage Workers

Employers seeking to hire low-wage workers do not need to submit transition plans with their Labour Market Impact Assessment (LMIA). They must, however, follow a different set of guidelines.

To restrict access to the Temporary Foreign Worker Program (TFWP), while ensuring that Canadians are always considered first for available jobs, the Government of Canada has introduced a cap to limit the number of low-wage temporary foreign workers that a business can employ. Furthermore, certain low-wage occupations may be refused for LMIA processing. Employers with 10 or more employees applying for a new LMIA are subject to a cap of 10 percent on the proportion of their workforce that can consist of low-wage temporary foreign workers. This cap will be phased in over 2015 and 2016 in order to provide employers who are above the 10 percent cap time to transition and adjust accordingly.

Employers offering a wage that is below the provincial/ territorial median hourly wage must:

  • pay for round-trip transportation for the temporary foreign worker;
  • ensure affordable housing is available.
  • pay for private health insurance until workers an eligible for provincial health coverage;
  • register the temporary foreign worker with the provincial/territorial workplace safety board; and
  • Provide an employer-employee contact

As of April 30, 2015, the Temporary Foreign Worker Program uses the latest Labour Force Survey results for the unemployment rates in regions across Canada. These rates determine which regions are eligible for employers to submit Labour Market Impact Assessments (LMIAs) for low-wage/lower-skilled occupations in the Accommodation and Food Services sector and the Retail Trade sector. LMIA applications for these sectors will not be processed in economic regions where the unemployment rate is 6 percent or higher.

Expediting a LMIA

LMIAs will be provided within a 10-business-day service standard for workers in the following occupational categories:

  • Highest-demand occupations

The 10-day service standard for this category is limited to skilled trades positions where the wage offered is at or above the provincial/ territorial median wage. These positions are essential to the development of major infrastructure and natural resource extraction projects and are therefore considered vital to Canadian economic growth.

  • Highest-paid occupations

The 10-day service standard for this category is limited to employers hiring temporary foreign workers in the highest-paid occupations that offer wages in the top 10 percent of wages earned by Canadians in a given province or territory where the job is located. This wage level indicated that a temporary foreign worker is the highest-skilled in their occupation, and that those skills are difficult to find in the Canadian labour market.

  • Shortest-duration occupations

The 10-day service standard for this category is limited to employers requesting temporary foreign workers for a short duration, defined as 120 calendar days or less, in any occupation where the wage offered is at or above the provincial or territorial median wage. Positions falling under this category include those related to repairs or manufacturing equipment and warranting work.

After receiving a positive MIA, the employer should send a copy to their identified foreign worker. The positive LMIA must be included in the worker’s application for a Temporary Work Permit.

A single LMIA can be issued for one or multiple employees. In the case of multiple employees, the LMIA will only be issued to employees who will be filling identical positions as identified by the Canadian National Occupation Classification.

Advertising Requirements

Employers wishing to hire a temporary foreign.

worker to Canada must pay a processing fee of CDN $1,000 for each request for a Labour Market Impact Assessment. There is also an additional $100 privilege fee on employers charged by Employment and Social development Canada.

English and French are the only languages that can be determined as job requirements, both for LMIAs and for job vacancy advertisements, unless the employer can prove that another language is otherwise required for the position.

in addition, employers must advertise all job vacancies across the Canadian job market for at least four weeks before applying for an LMIA. Towards this end, employers are required to prove that they have used at least two other recruitment methods in addition to having posted an advertisement on the Canada Job Bank. Employers must focus advertising efforts on groups of Canadians who are under-represented, such as First Nations or persons with disabilities.

Employers are also required to submit a transition plan to ESDC, along with the application for an LMIA, for high-wage positions. This transition plan should indicate how the company plans to reduce its reliance on temporary foreign workers in the future. Proof of investment in skills training or hiring Canadian apprentices are examples of how employers can prove this. Alternatively, employers can demonstrate how they are assisting their high-skilled temporary foreign workers) in becoming Canadian permanent residents. If the employer is chosen for an inspection, or if they apply to renew their LMIA, they will be required to report on the progress of the transition plan that they have submitted.

Employers are required to attest to their awareness that they are prohibited from laying off or cutting the hours of Canadian workers working in the same position as the temporary foreign workers working at the company.

Quebec-specific variations exemptions and variations

This section will look at exemptions and variations to the LMIA process that are specific to the province of Quebec.

  • Work permits issued to holders of a Quebec Selection Certificate (CSQ)

A Quebec Selection Certificate/certificat de sélection du Québec (CSO) is a document issued by the government of Quebec to individuals who have been approved for immigration to that province. Holders of a CSQ may work in Quebec without their employer needing to secure an LMIA.

  • Other workers

Foreign workers who do not fall into either of the above categories may have to apply for and obtain a Certificat d’Acceptation du Quebec (Certificate of Acceptance to Quebec,

CAQ) and a temporary work permit before beginning their employment in Quebec.

LMIA exemptions

LMIA exempt work permit allow foreign workers to work for a specific employer in a specific position, but do not require an LMIA.

Types of jobs in Canada that DO NOT require a Work Permit

The following types of jobs may not require a work permit for foreign nationals to engage in Canadian employment. It should be noted simple inclusion on this list does not mean that a person will be eligible for a work permit exemption. In order to qualify for a work permit exemption, a person’s job must be on this list and they must meet the additional exemption criteria for their specific job as outlined on the International Mobility Program webpage.

  • Athlete or coach
  • Aviation accident or incident investigator
  • Business visitor
  • Civil aviation inspector
  • Clergy
  • Convention organizer
  • Crew member
  • Emergency service provider
  • Examiner and evaluator
  • Expert witness or investigator
  • Family member of foreign representative
  • Foreign government officer or representative
  • Health care student
  • Judge, referee or similar official
  • Military personnel
  • News reporter or film and media crew
  • Producer or staff member working on advertisements
  • Performing artist
  • Public speaker
  • Short-term highly-skilled worker
  • Short-term researcher
  • Student working off-campus
  • Student working on-campus

If a foreign national in employed in one of the positions or scenarios listed above, they may be eligible for a work permit exemption.

Athlete or coach

If you are a foreign national who is a member of a foreign athletic team who is competing in Canada, you may be exempt from requiring a work permit. This provision covers athletes, coaches, and other members of foreign teams. If you are a part of a Canadian team, you will require a work permit.

Aviation accident or incident investigator

If you are accredited as an agent or adviser to investigate aviation accidents and/or other incidents you may be exempt from requiring a work permit to carry out such investigative work in Canada. To qualify for the exemption, the investigation must be under Transportation Accident Investigation and Safety Board Act.

Business visitor

Business Visitors are foreign nationals who travel to Canada to undertake business activities but do not enter the Canadian labour market. If you meet the definition of a business visitor, you may be exempt from requiring a Canadian work permit.

Note: There is a significant difference between a business visitor and a businessperson, ensure that you meet the definition to qualify for the exemption.

Civil aviation inspector

If you are employed to check the flight operations and cabin safety of international flights through Canada, you may qualify for a work permit exemption.

Clergy

If you are a foreign national who is an ordained minister, a lay person, or a member of a religious order, you may qualify for a work permit exemption to undertake religious work in Canada. Your duties in Canada may include the following: preaching doctrine, leading worship, and/or giving spiritual counselling.

Convention organizer

If you organize or run international conventions or international meetings, you may qualify for a work permit exemption. Please note that this exemption only applies to organizers, those providing hands-on services (audio-visual services, for example) during such conventions must have the appropriate work authorization.

Crew member

If you are a foreign national who is a truck driver, bus driver, shipping or airline worker, you may qualify for a work permit exemption. To qualify for the exemption, your employment must meet two conditions:

  • You must be working on vehicles which are owned and registered by enterprises outside of Canada which are used to transport cargo and/or passengers internationally; and
  • Your work must be related to the operation of the vehicles and/or the serving of passengers.

Emergency service provider

If you are a foreign national who will be working in Canada to provide services during an emergency, you may qualify for a work permit exemption. Your services must be to help preserve life and/or property in Canada. Emergencies include both natural disasters, like fires or floods, as well as industrial accidents which threaten the environment.

Examiner and evaluator

If you are a foreign national who is a professor or academic expert, you may be eligible for a work permit exemption to undertake certain types of activities in Canada. These activities include the evaluation and/or supervision of academic projects, research proposals, and theses. You may be employed by a Canadian educational institution or a Canadian research group.

Expert witness or investigator

If you are working in Canada to provide evidence before a regulatory body, a tribunal, or a court of law, you may be eligible for a work permit exemption.

Family member of foreign representative

If you are the spouse or child or a foreign representative, you may be eligible for a Canadian work permit exemptions. In order to qualify, you must meet the following conditions:

  • You must be accredited by Global Affairs Canada (GAC) including a GAC counterfoil in your passport.
  • You must have a letter of no objection issued by GAC. This letter is normally only issued if a reciprocal employment agreement exists between Canada and another country.

Foreign government officer or representative

You may qualify for a work permit exemption if you meet any of the three following conditions:

  • You are an employee of a foreign government working under an exchange agreement which allows officials to work in governments in your country and in Canada.
  • You are a foreign diplomat or official representative of another country.
  • You are a foreign diplomat or official representative of the United Nations.

Employees of other governments must obtain an official letter if they will be employed in Canada for longer than 3 months.

Health care student

If you are a foreign national who is studying in a healthcare field in Canada and wishes to undertake employment as part of a training program, you may be eligible for a work permit exemption. In order to qualify for the exemption, you must meet the four following conditions:

  • You must be participating in clinical clerkships.
  • The main goal of your employment is for training purposes.
  • You must have written approval from the provincial regulatory body which regulates your profession (please note that not all provinces require this).
  • Your training must last less than 4 months.

If you do not meet all of these conditions, you will require a work permit.

Judge, referee or similar official

If you are a foreign national travelling to Canada to judge or be an official at an international amateur competition, you may qualify for a work permit exemption. These following types of events are eligible for this exemption:

  • Music and dance festivals.
  • Animal shows.
  • Agricultural contests.

Military personnel

If you are a member of the armed forces of another country you may be eligible for a work permit exemption in Canada. To qualify for this exemption, you must have movement orders stating that you are entering Canada under the Visiting Forces Act.

News reporter or film and media crew

If you are a foreign national working in Canada as a news reporter or on a film and media crew, you may qualify for a work permit exemption. To qualify you must meet one of the following conditions:

  • You must be a news reporter or a member of a news reporter’s crew.
  • You must be a member of a film or media crew who will not enter the Canadian labour market.
  • You must be a journalist who works for a print, radio, television, or web-based publication which is not Canadian.
  • You must be a resident correspondent.
  • You must be a manager or clerical staff member of an event of less than 6 months duration.

Producer or staff member working on advertisements.

If you are entering Canada to work on a foreign-financed commercial/advertising shoot for television, magazines, or other media, you may qualify for a work permit exemption. In order to qualify, you must have one of the following roles:

  • Film producer
  • Actor
  • Director
  • Technician
  • Other essential personnel

This exemption only applies to short term employment, usually lasting no more than 2 weeks.

Performing artist

Certain foreign performing artists are eligible to work in Canada without a work permit. In order to qualify for this exemption, the foreign national must meet several requirements:

  • You are the foreign artist or the artist’s key support staff.
  • You will perform in Canada for a limited period of time.
  • You will not be hired for ongoing Canadian employment by the group which contracted you.
  • You will not be involved in creating a broadcast for television, radio, or film.

Public speaker

If you are a foreign national who is a guest speaker, a commercial speaker, or a seminar leader you may qualify for a work permit exemption. Only speakers at events lasting no longer than 5 days are eligible for this exemption.

Short-term highly-skilled worker

High-skilled workers may be eligible to work in Canada for short-term periods provided that a certain amount of time passes between each exemption. Under the terms for the short-term work permit exemption, foreign nationals working at NOC Skill Level 0 or A may be exempt from requiring a work permit for a short period of work in Canada.   Under the conditions for the short-term work permit exemption, the worker must be coming:

  • To perform work for 15 consecutive calendar days or less and six months have passed since the first day of work under the previous use of this exemption: or
  • To perform work for 30 calendar days or less and 12 months have passed since the first day of work under the previous use of this exemption.

As the short-term work permit exemption is designed to facilitate the work of foreign nationals residing outside of Canada, those residing within Canada are not eligible to apply for this exemption.

Short-term researcher

Some foreign nationals travelling to Canada to undertake short-term research may be eligible for a work permit exemption. This exemption only applies if the researcher meets the following conditions:

  • Must be undertaking research at a public degree-granting institution or affiliated research institution
  • Must be working for 120 or fewer consecutive days
  • Must not have utilized this exemption within the previous 12 months.

Student working off-campus

Full-time international students do not require a work permit to work off-campus during their studies. Full-time international students are eligible to work up to 20 hours per week during study periods and to work full-time during regularly scheduled academic holidays and breaks.

Student working on-campus

If you are a full-time international student in Canada, you do not require a work permit to work on-campus where you study. Full-time international students are eligible to work up to 20 hours per week during study periods and to work full-time during regularly scheduled academic holidays and breaks.

If you need more information about this program, please do not hesitate to get in touch today at info@dhunnaimmigration.ca