Last Updated on May 11, 2020 by Steven Meurrens
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 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 development or transfer of skills and knowledge is essential.
Third, the following questions will help guide the assessment of this factor:
- How will the staffing of this position lead to the transfer of skills and knowledge?
- What is the skills or knowledge being transferred or developed?
- How many Canadians / permanent residents will be trained?
- When will the positions be filled?
- If the LMIA is for a high wage position does the Transition Plan reflect an activity which speaks to the transfer of skills and knowledge?
- Does a Canadian / permanent resident possess same or similar skills?
- Is there an activity in the transition plan that supports the transfer of skills and knowledge?
Finally, the chart below shows how the final determination will be reached:
|An employer is able to demonstrate that the employment of a foreign national will or is likely to result in the development or transfer of skills and knowledge for the benefit of Canadians or permanent residents that would not be possible by employing a Canadian or permanent resident.||The factor is positive|
|Evidence suggests that there are no opportunities for the development or transfer of skills and knowledge for the benefit of Canadians or permanent residents (for example where there is a labour shortage only)||The factor is neutral|
|During assessment the officer finds evidence which suggests that the employment of a foreign national could reduce opportunities for Canadians or permanent residents to be provided with skills development or knowledge transfer opportunities.||The factor is negative.|
The ESDC Manual section can be found here: