Increased Labour Market Opinion Requirements

By Drab Makyo

One of the the great ironies with the immigration system is that Citizenship and Immigration Canada (“CIC”) representatives often voice concerns about how they are overrun with boxes of information.  At the same time, however, CIC keeps increasing the amount of documents that applicants have to submit.

The recent additions to what employer’s have to submit when applying for a Labour Market Opinion (“LMO”) is one example of this.  Effective April 1, employers will have to submit the following information.

All Employers

When applying for a LMO, all employers must provide:

  • A Canada Revenue Agency (“CRA”) business number;
  • A description of the main business activities;
  • An explanation of how hiring a Temporary Foreign Worker (TFW)  meets the employment needs of the employer; and
  • A signed statement attesting that the employer will abide by the Program requirements.

So far so good.  None of this represents a significant change from the current system, as between the application and the phone call most of this information is provided anyway.

New Employers

All new employers to the Temporary Foreign Worker Program will be required to provide a copy of:

  • Their business license; or
  • Permit.

Should an employer not be required by a municipality to obtain a license or permit to operate, then the documents listed below may be provided instead:

  • CRA documents including: T4 Summary of Remuneration Paid, Schedules 100 and 125 of the T2 Corporation Income Tax Return, T2125 Statement of Business or Professional Activities;
  • business contracts for goods and/or services;
  • provincial workers compensation clearance letter or other appropriate provincial documentation; and
  • attestation by a lawyer, notary public or chartered accountant confirming that the employer exists and the type of business the employer operates.

Upon request, returning employers may also be asked to submit any or all of the documents listed above.

It’s worth noting the use of the word “and” (which I have italicized) above.  Employers will presumably have to submit all of that information.  If you’re an Employer located in a municipality that doesn’t require a business license or permit, I feel your pain.

Returning Employers

All returning employers must demonstrate that they have met the terms and conditions of employment set out in previous LMO confirmation letters. In addition, some employers may be required to submit documentation to support any or all of the following documents:

  • payroll records;
  • time sheets;
  • job descriptions;
  • copies of the employer-employee contract;
  • collective agreements;
  • TFW’s work permit ;
  • provincial workers compensation clearance letter or other appropriate provincial documentation;
  • receipts for private health insurance (if applicable);
  • receipts for transportation costs; and
  • information about accommodations provided by the employer.

If it appears that employers did not fully respect the terms and conditions of employment set out in the LMO confirmation letters and annexes (if applicable), the employer will have the opportunity to provide a rationale.  The government will then work with the employer to implement the appropriate corrective action, which may include providing compensation to the foreign worker. Employers may be found non-compliant if they refuse to provide a rationale and/or provide only partial compensation to the TFW

There is no word yet on which employees will have to provide any or all of the above documents.  However, I can only see this extending the time that it takes to process Labour Market Opinion applications.  I’m really not sure what the intended benefit is.

Effect of Non-Compliance

If the employer is found to be non-compliant:

  • Service Canada may issue a negative LMO and revoke all positions on confirmed LMOs for which work permits have not yet been issued.
  • CIC may deem the employer ineligible to hire TFWs for two years. The employer’s name, address and period of ineligibility may also be published on a list of ineligible employers posted on the CIC website.

Conclusion

These changes are pretty intense.  Considering that Labour Market Opinions are currently only being issued for one year, employers are going to be significantly, and frequently, burdened by these new requirements.

The effects of non-compliance also dramatically increase the likelihood that a LMO decision may finally be judicially reviewed now that the costs of refusal potentially have grave consequences.