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:
- How will the staffing of this position lead to direct job creation or retention?
- How many jobs will be created / retained?
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.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.
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.
Read more ›
Last updated on July 9th, 2019
On June 12, 2017 Canada’s Department of Employment and Social Development introduced the Global Talent Stream.
Employers are eligible for the Global Talent Stream if they are hiring unique and specialized talent and if that talent has bent referred to the Global Talent Stream by one of ESDC’s designated partners. The list of designated referral partners for the Global Talent Stream includes the following organizations (as of March 21, 2018):
- Atlantic Canada Opportunities Agency
- BC Tech Association
- Burlington Economic Development Corporation
- Business Development Bank of Canada
- Canadian Economic Development for Quebec Regions
- Cape Breton Partnership
- City of Hamilton’s Economic Development Office
- Communitech Corporation
- Council of Canadian Innovators
- Economic Development Winnipeg
- Edmonton Economic Development
- Federal Economic Development Agency for Southern Ontario
- Genesis (Newfoundland)
- Global Affairs Canada’s Trade Commissioner Service
- Government of Alberta, Alberta Labour
- Government of British Columbia, Ministry of Jobs, Trade and Technology
- Government of Manitoba, Manitoba Education and Training
- Government of Nova Scotia, Nova Scotia Business Inc.
- Government of Ontario, Ministry of Citizenship and Immigration – Ontario Immigrant Nominee Program
- Government of Ontario, Ministry of Economic Development, Job Creation, and Trade – Ontario Investment Office
- Government of Prince Edward Island, Island Investment Development Inc.
- Government of Saskatchewan, Ministry of the Economy
- Halifax Partnership
- ICT Association of Manitoba (ICTAM)
- Innovation, Science and Economic Development Canada – Accelerated Growth Service
- Invest Ottawa
- Invest in Canada
- Launch Academy
- London Economic Development Corporation
- MaRS Discovery District
- National Research Council –
The following is an article that I wrote for The Canadian Immigrant Magazine.
Read more ›
One of the more frustrating aspects of the Temporary Foreign Worker Program from an application procedure angle can be determining whether ESDC accepts digital signatures, and whether an individual other than the 3rd party representative can sign for the person named as the third party representatives.
Helpfully, the Temporary Foreign Worker Program Wiki appears to answer that digital signatures are accepted in the TFWP, and that if there is no doubt that an individual works in the same law firm as an authorized third party then it is reasonable to accept that this individual can sign as an authorized representative.
Read more ›
[The following article appeared in the May edition of The Canadian Immigrant. I have slightly modified it for this blog post.]
Back in 2013, Canada’s temporary foreign worker program was rocked by well–publicized stories of abuse. As a result, the Government of Canada introduced a comprehensive compliance regime for employers of foreign workers, and promised to ban companies from being able to hire temporary migrants for two years if they breached the new conditions. In 2015, Canada’s Immigration and Refugee Protection Regulations were further amended to introduce an administrative monetary penalty regime, which would also fine employers for non-compliance.
The number of Canadian employers who have either been banned or fined for non-compliance is currently quite small, although both Immigration, Refugees and Citizenship Canada (IRCC) and the Department of Employment and Social Development (ESDC), the two main government agencies that manage Canada’s foreign worker programs, have indicated that the number is likely to grow in the near future, especially considering new funding announced with Budget 2017 to better protect vulnerable workers and to encourage employers to do more to hire Canadians first.
On March 23, 2017, the Federal Court of Canada released its first publicized decision on an ESDC decision to ban a company from hiring foreign workers for two years. The decision, Farms v. Canada (Employment and Social Development), provides much-needed guidance to both companies and to the government on how foreign worker compliance regime should be interpreted.
Conditions for hiring foreign workers
Employers of foreign workers must agree to comply with numerous conditions outlined in Canadian immigration legislation. The most significant one is the requirement to provide foreign workers with wages and working conditions that are substantially the same as — but not less favourable than — those set out in their offers of employment.Read more ›
Procedural fairness in Labour Market Impact Assessment (“LMIA“) applications is relatively low. In Frankie’s Burgers, the first reported Federal Court decision on the matter, the Court stated that (citations removed):
The requirements of procedural fairness will vary according to the specific context of each case. In the context of applications by employers for [Labour Market Impact Assessments], a consideration of the relevant factors that should be assessed in determining those requirements suggests that those requirements are relatively low. This is because, (i) the structure of the [LMIA] assessment process is far from judicial in nature, (ii) unsuccessful applicants can simply submit another application, and (iii) refusals of [LMIA] requests do not have a substantial adverse impact on employers, in the sense of carrying “grave,” “permanent,” or “profound” consequences.
However, as noted in the Kuzol decision, while the duty of procedural fairness in a LMIA application may be at the low end of the spectrum, it is not non-existent.
If an officer with the Department of Economic and Social Development (“ESDC“) relies on extrinsic evidence in reaching a decision, then there is a duty to disclose that evidence to the employer prior to the decision being made.
Extrinsic evidence does not include information that is publicly available on websites that are generally accessible to the public.
It does, however, include information derived from third parties that is not publicly available. For example, in the LMIA context, if an ESDC officer calls a third party to confirm whether there is a labour shortage in an area, and the information that the third party contradicts what the employer submitted to ESDC, then the officer must provide the employer with an opportunity to respond to the information that the third party provided.Read more ›
Last updated on September 19th, 2018
The Department of Employment and Social Development’s (“ESDC“) Agricultural Stream allows employers to hire temporary foreign workers (“TFWs“)for a maximum period of 24 months when Canadians and permanent residents are not available. The program was created to reduce differences between the Seasonal Agricultural Workers Program (“SAWP“) and the regular Labour Market Impact Assessment (“LMIA“) stream. The Agricultural Stream applies to TFWs entering Canada from any country.
Information can be found on the ESDC website here: http://www.esdc.gc.ca/en/foreign_workers/hire/agricultural/overview.page
The following are frequently asked questions about the program as reproduced from the TFWP Wiki. This Wiki was obtained through an Access to Information Act request, and may be out of date by the time you read this. The reproduction did not occur with the affiliation of the Government of Canada. The full reproduction can be found in the PDF below.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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