LMIA’s – The Job Creation Factor

26th Feb 2020 Comments Off on LMIA’s – The Job Creation Factor

Regulation 203(3)(a) of the Immigration and Refugee Protection Regulations (the “IRPR“) states:

(3) An assessment provided by the Department of Employment and Social Development with respect to the matters referred to in paragraph (1)(b) shall, unless the employment of the foreign national is unlikely to have a positive or neutral effect on the labour market in Canada as a result of the application of subsection (1.01), be based on the following factors:

(a) whether the employment of the foreign national will or is likely to result in direct job creation or job retention for Canadian citizens or permanent residents;

The Temporary Foreign Worker Manual states that the following principles should guide the assessment of whether the employment of a foreign national will or is likely to result in direct job creation or job retention for Canadian citizens or permanent residents.

First, an officer conducting an analyis of a Labour Market Impact Assessment (an “LMIA”) application should reflect a reasonable and balanced approach ensuring that officers od not base their decision solely on the outcome of one of the seven labour market factors.  An employer can receive a positive LMIA even if this factor is assessed to be negative and an employer can receive a negative LMIA even if this factor is assessed to be positive.

Second, for Owner Operator LMIAs, assessing if the entry of a foreign national will result in the creation or retention of employment opportunities for Canadians and permanent residents holds more weight in determining the impact on the labour market.

Third, the following questions will help guide the assessment of this factor:

  1. How will the staffing of this position lead to direct job creation or retention?
  2. How many jobs will be created / retained?

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Where to Apply for a Study Permit

24th Feb 2020 Comments Off on Where to Apply for a Study Permit

Regulation 215 of the Immigration and Refugee Protection Regulations states that:

215 (1) A foreign national may apply for a study permit after entering Canada if they

(a) hold a study permit;

(b) apply within the period beginning 90 days before the expiry of their authorization to engage in studies in Canada under subsection 30(2) of the Act, or paragraph 188(1)(a) of these Regulations, and ending 90 days after that expiry;

(c) hold a work permit;

(d) are subject to an unenforceable removal order;

(e) hold a temporary resident permit issued under subsection 24(1) of the Act that is valid for at least six months;

(f) are a temporary resident who

(i) is studying at the preschool, primary or secondary level,

(ii) is a visiting or exchange student who is studying at a designated learning institution, or

(iii) has completed a course or program of study that is a prerequisite to their enrolling at a designated learning institution; or

(g) are in a situation described in section 207.

IRPR 215(f)(iii)

Regulation 215(f)(iii) has been the subject of judicial scrutinity.

The Immigration, Refugees and Citizenship Canada Guidelines state:

Prerequisite course or program of study in Canada before the main program of study

As of June 1, 2014, visitors in Canada who have completed a course or program of study that was previously identified as a prerequisite for their admission into a program of study at a DLI may also apply for a study permit from within Canada [R215(1)(f)(iii)] if they provide both

    • a letter of acceptance received from a DLI before or after the completion of the prerequisite course that confirms the course is a prerequisite for admission to the main program
    • proof of successful completion of the prerequisite course,

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ESDC – Determining Who the Employer Is

22nd Feb 2020 Comments Off on ESDC – Determining Who the Employer Is

Canada’s Department of Employment and Social Development Canada (“ESDC“) administers the Temporary Foreign Worker Program (the “TFWP“).  This is the program through which employers can obtain Labour Market Impact Assessments (“LMIAs“).

The following is a partial reproduction of the TFWP Manual (an internal document) regarding who the employer is for the purpose of administering the TFWP.

Who is the Employer

ESDC policy states that an employer is an entity (e.g. person, business, corporation or organization) that makes an offer of employment to one or more foreign nationals who provide labour in return for compensation for a specified period of time.  The employer is generally the entity that hires, controls working condititions and remunerates the foreign national.

For the purpose of the Temporary Foreign Worker Program, charachteristics of the relationship, such as control and remuneration, including statutory benefits (e.g. CPP and EI) will be reviewed to determine when an employer – employee relationship exists. The total relationship will be examined and assessed, bearing in mind that no one factor is determinative and there is an extensive list of factors that may be examined.

In cases where two or more entities are determined to share employer responsibilities by the Department, a group of employers may make an offer of employment to a foreign national.  The roles and responsibilities of each party must be clear and defined at the time of application.

For the purpose of the Temporary Foreign Worker Program, in cases where a self-employed individual wishes to enter Canada to establish or purchase a business and be involved in its day-to-day operations, the business plan or contract to purchases shares in a business should be evaluated as the job offer.  Ownership of shares does not guarantee that a foreign national would qualify as an owner-operator.

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