The Department of Employment and Social Development’s (“ESDC“) Primary 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. Overview of LMIAs Under the Temporary Foreign Worker Program ESDC reviews LMIA applications to assess the likely impact that foreign workers will have on the Canadian labour market. Immigration, Refugees and Citizenship Canada then generally processes work permit applicaitons submitted by foreign nationals who want to work in Canada. IRCC ensures that program requirements are met, and assesses the admissibility of applicants. The Canada Border Services Agency (“CBSA”) examines foreign nationals at the time of entry and determines whether they may enter Canada. Agricultural LMIAs The Primary 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 In brief, Primary Agriculture is defined as work duties that must: be performed within the boundaries of a farm, nursery or greenhouse involve at least one activity, such as: operation of agricultural machinery, boarding, care, breeding, sanitation or … Read More
LMIAs for Concession Booth Owner Operators
The Department of Employment and Social Development Canada has special Labour Market Impact Assessment rules for concession booth operators. As per the Guidelines, concession both operators, within the specific context of major touring productions / shows (eg. Disney on ICe, Monster Jam, Ringling Brothers) are classified as National Occupational Classification 0621 – Retail Trade Managers. Concession booth operators are responsible for planning, organizing, directing, controlling and evaluating the operations of establishments selling merchandise. For concession booth owners / operators / managers working in conjunction with major touring productions / shows, the foreign workers own and operate concession booths as sub-contractors of the production company. They: are trained in specific contractual standards on a range of topics, e.g. product knowledge, sales techniques, security; and may be required to purchase minimum quotas of licensed products. At these events, concession sales represent a signficant revenue stream which supports the viability of the main production / show. LMIAs The ESDC guidelines state that officers must base their assessment on whether the employer has made, or has agreed to make, reasonable efforts to hire or train Canadian citizens or permanent residents. LMIA applications for concession both owners / operators associated with major touring productions such … Read More
LMIAs – The Skills Transfer Factor
Regulation 203(3)(b) 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: (b) whether the employment of the foreign national will or is likely to result in the development or transfer of skills and knowledge for the benefit of 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 do 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 … Read More
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 … Read More
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 … Read More
Labour Market Impact Assessments – Recruitment Requirements
Employers wishing to apply for Labour Market Impact Assessments are required to conduct recruitment efforts to hire Canadian citizens and permanent residents. The Department of Economic and Social Development (“ESDC” or “Service Canada“) is very stringent in its recruitment requirements, many of which are not publicly available. In this blog post I seek to provide a comprehensive overview of Service Canada’s recruitment requirements, including providing a summary of the publicly available information on the Service Canada website, as well as summarizing and reproducing internal ESDC directives. I would like to thank Jacobus Kriek, an immigration consultant with Matrixvisa Inc., for providing me copies of the internal Service Canada directives and e-mails that he has obtained. Please note that what I have reproduced below should not be viewed as legal advice by ESDC or Service Canada. The reproduction of the material below has not occurred with the affiliation of the Government of Canada, nor with the endorsement of the Government of Canada. As well, given the nature of relying on internal documents, some of the information may be out of date.
Work Permits for Employers in the Sex Trade
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 … Read More
ESDC’s Mail Audits
One of the most perplexing aspects about the Ministry of Employment and Social Development Canada (“ESDC“) is its insistent that all Employer Compliance Reviews be done by mail. Apparently, as confirmed in this reproduction of internal ESDC correspondence obtained through an Access to Information Act request, it is because the potential for electronic transmission of information to be intercepted by wireless devices is too great. I’m sure most employers would be willing to take this risk (which is probably less than the risk of something getting lost in the mail) if it meant that the Employer Compliance Reviews took days instead of (often) months.
The Global Skills Strategy – Faster Processing and More Compliance for Certain Work Permits
The following is an article that I wrote for The Canadian Immigrant Magazine.
Strict Interpretation of Compliance in the Foreign Worker Program
[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 … Read More