The Temporary Foreign Worker Program, also known as the Labour Market Impact Assessment, is the main program through which Canadian companies hire temporary foreign workers.
Kyle Hyndman and Meera Thakrar are both Canadian immigration lawyers whose practices focus on helping companies recruit and retain foreign workers.
We discuss numerous aspects of obtaining Labour Market Impact Assessments, including prevailing wage, recruitment, transition plans, processing times, job match, the Global Talent Stream and the Owner – Operator LMIA.
3:00 – What are the first questions or things that Kyle and Meera tell Canadian employers that want to apply for Labour Market Impact Assessments?
3:57 – What is the difference between the Temporary Foreign Worker Program and the International Mobility Program?
8:00 – Why are companies generally reluctant to obtain Labour Market Impact Assessments?
8:20 – What are the recruitment requirements for a Labour Market Impact Assessment?
12:50 – What is Job Match?
19:00 – What do companies have to show and demonstrate through the recruitment process?
23:20 – What is the wage requirement for a LMIA? What is the prevailing wage?
25:00 – Do employers hire foreign workers to undercut Canadian wages?
26:30 – Can employers of foreign workers offer raises or bonuses?
30:00 – What are Transition Plans in High Wage LMIA applications?
36:00 – How does the Low Wage cap work?
37:00 – How does an employer show they can afford to pay the foreign worker?
39:00 – Can recruitment have a language requirement?
41:00 – What is an Owner Operator Labour Market Impact Assessment?
42:15 – What is the Global Talent Stream?
47:25 – How long do LMIAs take to process?Read more ›
Marshall Rothstein served as a Justice on the Supreme Court of Canada from 2006 – 2015. He previously was a Judge on the Federal Court of Canada and the Federal Court of Appeal.
Garth Barriere is a criminal defence attorney in Vancouver. He was counsel in Khosa v. Canada (Citizenship and Immigration, a major Supreme Court of Canada immigration decision in which Justice Rothstein wrote a concurring opinion.
In this episode Justice Rothstein provides tips for written and oral advocacy. While the focus is on appellate litigation, anyone interesting in strengthening their advocacy skills will benefit from what he has to say. We also discuss the Supreme Court of Canada’s decision in Khosa v. Canada (Citizenship and Immigration), and its impact on administrative law in Canada. It is a frank conversation.
9:00 – What it was like for Justice Rothstein when he was appointed to the Federal Court of Canada and to adjudicate cases on which he had no previous experience?
12:30 – How was it different being on the Federal Court vs. the Federal Court of Appeal vs. the Supreme Court of Canada?
14:20 – What strategies or approaches would Justice Rothstein suggest for counsel appearing at the appellate level instead of at the trial division?
18:23 – What is the most important thing to remember in written advocacy? What is “point-first writing?” A helpful piece to read on this can be found here. http://www.ontariocourts.ca/coa/en/ps/speeches/forget.htm
21:10 – What tips does Justice Rothstein have for oral advocacy at the Supreme Court of Canada?
31:30 – What makes a good factum? Does Justice Rothstein believe that the IP bar produces the best factums?
36:20 – What was the Supreme Court of Canada decision in Canada (Citizenship and Immigration) v.Read more ›
Since July 4, 2012, Minister Instructions have been in place that prohibit temporary foreign workers in Canada from working in a business that is in a sector where there are reasonable grounds to suspect a risk of sexual exploitation of some workers. The Ministerial Instructions define the business sectors where there are reasonable grounds to suspect a risk of sexual exploitation as being strip clubs, escort services and massage parlours.
When receiving applications for work permits made by foreign nationals seeking to work in a business that is in a sector where there are reasonable grounds to suspect a risk of sexual exploitation, officers will not process the applications.
As well, all work permits advise temporary foreign workers of the restriction, as they typically state “not valid for employment in businesses related to the sex trade such as strip clubs, massage parlours or escort services.
Employment and Social Development Canada’s Temporary Foreign Worker Program WIKI provides the following additional guidance.
Sex Industry: An employer that engages in striptease, erotic dance, escort services or erotic massage on a regular basis (eg. daily, weekly or monthly).
- Striptease and erotic dance: activities involving nudity. A business that engages in activities without nudity that may be interpreted as sexually suggestive (e.g. modelling) is not considered to be an employer offering striptease or erotic dance.
- Escort Services: The provision of services that are sexual in nature or for romantic companionship.
- Erotic Massage: The provision of massage services that are sexual in nature. This does not include massage activities undertaken for therapeutic reasons (e.g. performed by Registered Massage Therapists).
- An LMIA application received from an employer that hosts weekly strip dance shows should not be processed.
Regulation 4 of Canada’s Immigration and Refugee Protection Regulations state that a foreign national shall not be considered a spouse, a common-law partner or a conjugal partner of a person if the marriage, common-law partnership or conjugal partnership (a) was entered into primarily for the purpose of acquiring any status or privilege under the Act or (b) is not genuine.
A Hasty Marriage
In Nadasapillai v Canada (Citizenship and Immigration), 2015 FC 72, Justice Diner held that the fact that a marriage was entered into after a short courtship is not determinative of a mala fide marriage. He stated:
The Panel criticized the haste based on Ms. Raman’s troubled past relationship and marriage, and the fact that Ms. Raman was 38 years of age at the time, i.e., getting on in age for a single mother. There are two reasons that this is a weak conclusion.
First, one can easily understand why Ms. Raman was ready for the companionship that she clearly explained she had longed for: older couples can be quick in deciding to get married (although haste is certainly not the exclusive domain of any particular age). Older people are often ready to move more quickly into a lifelong commitment, as they know what they want. As Ms. Raman stated in her testimony, “I am getting older. I am very old now and I don’t know how long I’ll be able to live. … I found him a good person. So I took two or three days… to think about it and then decide it.”
Second, if the basis of finding haste was one steeped in a certain culture, it is unfair. In the context of the Refugee Protection Division,Read more ›
One of the more common reasons for a study permit application to be refused is because a visa officer determines that an applicant’s proposed program of study in Canada is unreasonable given the applicant’s background. The wording of such refusals varies, but it typically includes statements about how an individual could study in a similar program for a cheaper cost in their country of residence, or that there is no logical academic progression given their previous studies.
The following is an example of such a refusal.
Visa officers have the authority to determine whether a study permit applicant’s proposed program of study is reasonable. It is reasonable for an officer to find that an intended program does not accord with an applicant’s previous academic history. Officers can also question applicants who are abruptly changing career paths.
However, the decisions of visa officers must demonstrate that all evidence of applicants was considered. Where they do not, the decisions will be unreasonable.
For example, in Taiwo v. Canada (Citizenship and Immigration), Justice Shore stated that:
The Officer should not have doubted the Applicant’s explanations regarding his change of career path. The Applicant first studied in Sociology from 1995 to 2000, even though from 2004 to 2012, he has been employed as a Financial Officer and a Financial Manager. In 2012, the Applicant became the Financial Director at Tropical Spectrum BDC Ltd., a family owned business by the Applicant himself, in which he owns the majority of the shares of the company. The business is currently still running, recognizing that it is the Applicant’s wife, as stated in her sworn affidavit of financial support that she will take care of the company during the absence of her husband.Read more ›
Sean Rehaag, an Associate Professor at Osgoode Hall Law School, has published a paper titled Judicial Review of Refugee Determinations (II): Revisiting the Luck of the Draw. Its Abstract states:
This article updates an earlier empirical study of decision-making in the refugee law context in Canada’s Federal Court. The initial study found that outcomes in Federal Court applications for judicial review of refugee determinations depended all too often on the luck of the draw – on which judge decided the case. Since the initial study was released, the Federal Court has adopted measures to address variations in grant rates across judges. Drawing on data collected from over 33,000 online Federal Court dockets from 2008 to 2016, the article examines whether those measures have been successful and what further reforms should be pursued.
Some of the charts contained within are fascinating, and show the following.
1) The number of applications for leave to commence judicial review in refugee matters has been steadily declining since 2012.
2) The % of leave applications being granted has increased from just under 20% from 2008-2012 to just under 30%.
3) The % of successful judicial review applications, not including those that settle, has increased from under 10% to around 15%
4) The JR Grant Rate, including leave decisions, ranges from 0.7% to 33.8% in 2008-2011, and 1.8% to 22.8% in 2013-2016, depending on who the judge is.
Read more ›
The Department of Employment and Social Development Canada (“ESDC”) has very strict procedures for returning incomplete Labour Market Impact Assessment (“LMIA”) applications.
All applications are reviewed for completeness. A “complete” application means that the employer has used the appropriate form and an acceptable version, and:
- filled out all fields in all the necessary forms;
- included all the documents that are requested;
- signed all the forms, where required; and
- provided the payment form for the processing fee (where applicable).
If an application is missing information, an officer will determine if the missing element can be obtained quickly and call the employer to obtain the information. Applications that would have been eligible for priority processing but for the missing information are placed in regular processing, even if the information can be obtained quickly.
If the application is missing information that is not easy to obtain, then the application will be deemed incomplete. Although ESDC officers will typically shred or delete an incomplete LMIA, officers will enter reasons for why the application was incomplete in the employer’s system file notes.
The following information from the ESDC Wiki expands on what is written above.
Read more ›
Please note that none of the information on this website should be construed as being legal advice. As well, you should not rely on any of the information contained in this website when determining whether and how to apply to a given program. Canadian immigration law is constantly changing, and the information above may be dated. If you have a question about the contents of this blog, or any question about Canadian immigration law, please contact the Author.
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