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.
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Section 40 of the Immigration and Refugee Protection Act provides that a permanent resident or foreign national is inadmissible to Canada for directly or indirectly misrepresenting or withholding material facts relating to a relevant matter that induces or could induce an error in the administration of Canada’s immigration laws.
The general consequence of misrepresenting is a five-year ban from entering Canada.
Canada is very strict on misrepresentation. In Bundhel v. Canada (Citizenship and Immigration), 2014 FC 1147, for example, Mr. Bundhel had been charged and convicted with an offence, which had been overturned on appeal. Mr. Bundhel would accordingly not have been criminally inadmissible to Canada. Because of this, he put on his immigration forms that he had never been charged or arrested. When it discovered thathehad been previously charged, Citizenship and Immigration Canada wrote to him and provided him with an opportunity to explain why he misrepresented. After the immigration officer reviewed the Mr. Bundhel’s explanation that it was an innocent mistake, the officer refused the application, and declared the person inadmissible to Canada for misrepresentation. The Court wrote (citations removed):
Mr. Bundhel’s complaint that the Officer should have considered the fact that he owned-up to the problem at the first available opportunity is also unjustified. Mr. Bundhel only acknowledged the true facts when he was confronted with them. This is not equivalent to a situation where an applicant owns-up to a mistake before it is brought to light or where the file already contains the correct information. In such a case, a favourable inference is more likely to be drawn because it is suggestive of an innocent mistake and not a wilful omission. The same point is made in Uppal v Canada (Minister of Citizenship and Immigration),Read more ›
Where there is a corporate restructuring, merger or acquisition, the holder of a Labour Market Impact Assessment (an “LMIA”) should contact the Department of Employment and Social Development Canada (“ESDC”) to inform them of the change. Whether a new LMIA will be required will depend on a variety of factors, including whether the corporate restructuring, merger or acquisition impacts the prevailing wage, job description and job duties of a foreign worker.
As per the internal ESDC wiki, reproduced below, in cases where employer’s responsibilities are transferred to a different employer through a merger or acquisition, both the original and successor employer must provide details on when the responsibilities of the employer were transferred, and the successor must agree (and acknowledge in writing) to all conditions set out in the original LMIA. Generally, a new LMIA would not be required.
A new LMIA would be required if the acquisition resulted in changes to the job duties or description. In addition, if the officer has serious concerns regarding the genuineness of the new employer, they may require the new employer to submit a new LMIA application and pay the required fees.
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On June 18, 2015 the Secure Air Travel Act received Royal Assent. It enhanced the Passenger Protect Program, more commonly called the “no-fly list.”
The previous Conservative Government of Canada strengthened the Passenger Protect Program in response to an increase in the number of individuals travelling from Canada to participate in foreign conflicts, and in particular joining ISIS.
The Passenger Protect Program is an air passenger security program. Through it the government works with air carriers to screen commercial passenger flights to, from and within Canada, and uses measures to mitigate the threat if a listed individual attempts to board an aircraft.
The specific categories of individuals who can be impacted include (a) those who are suspected of posing a threat to transportation and (b) those who are attempting to travel abroad by air to support terrorism-related activities.
Individuals who are subject to a denial of boarding, also known as those on the Specified Persons List, can make an application to the Minister of Public Safety and Emergency Preparedness to be removed.
The government does not publish the Specified Persons List, nor does it say how many people are on the list.Read more ›
From requiring that foreign nationals have their photos taken as part of the biometrics process to visa applicants needing to provide headshots in their applications, many Canadian immigration programs have a photo requirement. There is no exemption from the photograph for religious reasons. Below is a memo that was prepared for the Minister of Citizenship and Immigration Canada in 2013 confirming that there are no exemptions to the photograph requirements in response to a request for an exemption from the Amish community.Read more ›
Both Immigration, Refugees and Citizenship Canada as well as the Canada Border Services Agency (“CBSA“) are responsible for ensuring that Canada’s immigration system maintains the security of Canadian society. One of the ways that both departments do this is by determining that individuals are inadmissible to Canada.
In this post I will review and summarize a CBSA Intelligence Advisory that was obtained through an informal Access to Information Act. The Intelligence Advisory was produced by the CBSA Intelligence Operations and Analysis Division in September 2016. It expired in January 2017. The Intelligence Advisory identified certain countries that at the time posed unique issues for CBSA’s mandate of protecting Canadians. In reproducing the information below my goal is not to stigmatize members of these communities nor to imply that their citizens are a threat. Rather, it is to present information as produced by the CBSA for informational purposes only. Every person deserves to be treated as an individual. However, it is contrary to common sense to suggest that certain communities don’t have unique circumstances.
Statistics on Inadmissibility
From 2007 to 2016, the Canada Border Services Agency wrote reports for the following inadmissibilities:
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As previously noted on this blog, Bill C-46 will when it takes effect make many offences that currently render someone inadmissible for criminality inadmissible for serious criminality.
The Minister of Immigration, Refugees and Citizenship Canada has now affirmed that these changes will not apply retrospectively.
As such, people who were previously deemed rehabilitated will continue to be so. As well, people who committed an offence prior to December 18, 2018 will benefit from the previous sentencing provisions in the Criminal Code.
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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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