Refusal to Process a Labour Market Impact Assessment
A Labour Market Impact Assessment (a “LMIA“) is an assessment by the Department of Employment and Social Development Canada (“ESDC“) that the hiring of a foreign worker will have a positive, neutral or negative impact on Canada’s labour market.
An LMIA is often a requirement to hire a foreign worker.
There are certain situations in which ESDC will refuse to issue a LMIA. This effectively precludes employers from utilizing the Temporary Foreign Worker Program (the “TFWP“).
The Sex Industry
Regulations 183(b.1) and 196.1 of the Immigration and Refugee Protection Regulations (the “IRPR”) provides that temporary residents are prohibited from entering into an employment agreement, or extending the term of an employment agreement, with an employer who, on a regular basis, offers striptease, erotic dance, escort services or erotic massages.
Regulation 200(3)(g.1) of the IRPR further provides that work permits cannot be issued to workers who intend to work for employers who, on a regular basis, offers striptease, erotic dance, escort services or erotic massages.
Because of this, ESDC will not issue LMIAs to employers who regularly offer services in the sex industry (striptease, erotic dance, escort services or erotic massage).
Ineligilibity List
Employers who hire temporary workers may be inspected to make sure they meet their responsibilities as an employer under the Temporary Foreign Worker Program or International Mobility Program. If an employer is found non-compliant, they can receive either a monetary penalty or a ban from hiring temporary workers for a specified period of time.
As such, ESDC will not issue LMIAs to employers who are on the Immigration, Refugees and Citizenship Canada ineligibility list which includes employers who:
- have been found non-compliant as result of an employer compliance review
- have been banned from the Temporary Foreign Worker Program because non-compliance was discovered during an inspection
- are in default of payment of an administrative monetary penalty.
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Read more ›Joint Submissions at the Immigration Appeal Division
It is not uncommon for the Canada Border Services Agency (“CBSA”) to consent to an Immigration Appeal Division (the “IAD”) appeal, and for the applicant and CBSA to make joint submissions.
On occassion, the IAD will not accept the joint submissions.
There are also occassions where the IAD may signal, either expressly or impliedly that a certain matter is not at issue, while it in fact may be or become an issue.
The jurisprudence on this is as follows.
In Velauthar v Canada (Minister of Employment and Immigration), [1992] FCJ No 425 (CA), a panel advised counsel before submissions that the only issue was whether the persecution the claimant feared was based on a Convention ground. This implied that credibility was not in issue, so the parties did not address credibility in their submissions. The Federal Court of Appeal found it to be a “gross denial of natural justice” for the panel to then make an adverse determination on grounds of credibility.” The Federal Court of Canada has applied Velauthar in cases where a tribunal directly or by implication gave the misleading impression that a matter or issue was resolved.
At the same time, the Federal Court of Canada in Fong v Canada (Public Safety and Emergency Preparedness), 2010 FC 1134, ruled that the IAD is entitled to reject a joint submission so long as it provides reasons for so doing and if hte process was procedurally fair. However, the IAD must give serious consideration to the joint submission. Several Federal Court decisions have compared joint submissions at the IAD with joint submissions in criminal sentencing.
In Grewal v. Canada (Citizenship and Immigration),
» Read more about: Joint Submissions at the Immigration Appeal Division »
Read more ›The Temporary Foreign Worker Manual states the following about working conditions.
» Read more about: LMIA Working Conditions »
Read more ›During the COVID-19 pandemic Immigration, Refugees and Citizenship Canada (“IRCC”) has implemented numerous policies to try to process applications as normally as possible and also provide applicants who are unable to provide certain documents or meet deadlines with flexibility. Applicants should know that while IRCC is providing more flexibility than it normally does to incomplete applications that it is still returning applications that are technically incomplete where applicants do not provide an explanation. The return of these applications sometimes takes months due to pandemic related intake delays at IRCC, and it is very important that applicants submit complete applications.
IRCC’s COVID-19 Policy with Regard to Missing Documentation
Canada’s Immigration and Refugee Protection Regulations provides that IRCC can return applications that are missing mandatory information or documents.
During COVID-19, IRCC’s policies are that new, complete applications will be processed as normally possible.
If a new application is missing supporting documentation or information, then an applicant must include an explanation with their application that they are affected by a service disruption as a result of COVID-19. IRCC will then essentially put the application aside, and wait for the document to be provided.
If a new application is missing supporting documentation or information, and an applicant has not provided an explanation, or if the reason why the document or information is missing is not related to a disruption of services caused by COVID-19, then IRCC will return the application for being incomplete.
IRCC’s Public Messaging vs. Reality
IRCC officials have stated in public that during COVID-19 they have not returned incomplete applications, but rather contacted applicants to remedy the situation. On November 25, 2020, for example, Marco Mendicino, the Minister of Immigration, Refugees and Citizenship Canada told the House of Commons Committee on Citizenship and Immigration that in the spousal sponsorship context visa officers work with Members of Parliament to troubleshoot incomplete applications with the goal being to reunited as many families as possible.
» Read more about: Returning Applications During COVID-19 »
Read more ›Borderlines Podcast #44 – An Interview with Chris Alexander, Canada’s Immigration Minister from 2013-2015
The Honourable Chris Alexander served as Canada’s Minister of Citizenship and Immigration Canada from July 2013 to November 2015. He represented the riding of Ajax—Pickering in the House of Commons of Canada from 2011 to 2015. Prior to that spent 18 years in the Canadian Foreign Service, serving as Canada’s first resident Ambassador to Afghnistan from 2003 – 2005. Subsequent to being an Member of Parliament he ran for the leadership of the Conservative Party of Canada.
As Minister of Citizenship and Immigration Canada, Mr. Alexander presided over the launch of Express Entry, the termination of the Immigrant Investor Program and the introduction of the Barbaric Cultural Practices Act, which prohibited forced and underaged marriages.
Borderlines · #44 – An Interview with Chris Alexander, Canada’s Immigration Minister from 2013-2015
5:09 – If there was one misconception about Canadian immigration law that Minister Alexander would like to change what would it be?
15:00 – Bill C-24 and the revocation of citizenship for dual nationals convicted of high crimes.
16:00 – Whether there was a strong anti-fraud and anti-exploitation mandate during Minister Alexander’s time as Minister.
22:00 – Combatting forced marriages.
23:00 – Preventing foreign worker abuse by sanctioning the employers who abuse them.
26:00 – The Barbaric Cultural Practices Act
36:45 – Ending the Immigrant Investor Program
41:45 – Entrepreneurial immigration and self-employed program.
49:00 – Points inflation in Express Entry and the increased demand for Canadian immigration.
52:30 – The launch of Express Entry
55:30 – Moving towards online applications
57:15 – What it was like following Jason Kenney as immigration minister, and the challenges posed,
Read more ›Borderlines Podcast #43 – An Interview with John McCallum, Canada’s Immigration Minister from 2015-2017
The Honourable John McCallum served as Canada’s Minister of Immigration, Refugees and Citizenship Canada from November 2015 to January 2017. A Member of Parliament from 2000 – 2017, he also served as Defence Minister under Jean Chrétien, and Veterans Affairs Minister, National Revenue Minister, Natural Resources Minister and as Chair of the Expenditure Review Committee under Paul Martin.
As Minister of Immigration, Refugees and Citizenship in Justin Trudeau’s cabinet, Mr. McCallum led Canada’s effort to welcome 25,000 Syrian refugees over a period of three months. He also increased the age of dependency from 18-22, repealed conditional permanent residency and reduced family class processing times.
Borderlines · #43 – An Interview with John McCallum, Canada’s Immigration Minister from 2015-2017
5:00 – The resettlement of 40,000 refugees in Canada.
22:00 – The division of immigration repsonsibilities between IRCC, CBSA and ESDC. Should they be combined?
28:00 – What goes into reducing processing times.
33:00 – Abolishing conditional permanent residence.
39:00 – Mr. McCallum’s approach to being immigration critic towards the end of the Harper era.
42:30 – The Barbaric Cultural Practices Act and the Niqab ban.
44:00 – Caregivers
48:00 – Helping as Minister on individual files.
54:00 – What goes into levels planning?
Read more ›Borderlines Podcast #41 – Judges Virtue Signalling Inside and Outside of Court, with Andrew Hayes
In R v. Kattenburg Justice Stratas of the Federal Court of Appeal cautioned judges against giving “virtue signalling and populism a go.” This prompted a largely philosophical discussion about the role of judges, a Toronto judge who wore a Make America Great Again hat in court, a Quebec judge who proclaimed herself a feminist before making statements about Quebec’s ban on religious attire, Ruth Bader Ginsburg criticizing President Trump, and defining what virtue signaling even is.
Borderlines · #41 – Judges Virtue Signalling Inside and Outside of Court, with Andrew Hayes
Andrew Hayes is a US immigration lawyer who practices out of Vancouver.
Read more ›DISCLAIMER
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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