Canada’s immigration system heavily relies on the National Occupational Classification (“NOC”) system, managed by Service Canada. For applicants in the economic class, a deep understanding of the NOC system is crucial. The success of their immigration applications often hinges on proving they have qualifying experience or pre-arranged employment in specific NOC categories. Employers submitting Labour Market Impact Assessment (“LMIAs”) applications to the Ministry of Economic and Social Development Canada (“ESDC“) need to know which NOCs their positions fall under because this will determine the respective prevailing wage and recruitment requirements. Moreover, international graduates should be mindful of the NOC classification of their first job after completing post-secondary education. Experience in certain NOCs is essential for it to count towards immigration eligibility.
LMIA Language Requirements
The application for a Labour Market Impact Assessment (“LMIA”) asks: Employers should generally be counselled against stating that an offer of employment requires the ability to communicate in a language other than English or French.
Original Signatures, Digital Signatures and Copies of Signatures
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. In the Family Class, IRCC has confirmed that applicants should double check the document checklist to determine which forms require original signatures, and for which forms a copy is ok.
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’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.
IRCC Clarifies Non-Compliance in the International Mobility Program
It is imperative that employers hiring foreign workers in the International Mobility Program (“IMP“) understand the consequences of non-compliance. Immigration, Refugees and Citizenship Canada (“IRCC“) has finally published information on its website which summarizes how it will determine when non-compliance has occurred and what the consequences will be. Since December 1, 2015, IRCC has had the legislative authority to apply administrative tools, including warning letters, administrative monetary penalties (“AMPs“) and bans on employers accessing the IMP to certain employers where an IRCC officer has determined that an employer has breached the terms and conditions of participating in the IMP. Breaches that Occurred Before December 1, 2015 It is important to note that the AMP and the bans described below only apply to employer breaches that occurred after December 1, 2015. The penalty to an employer for unjustified breaches that occurred prior to December 1, 2015 is a two-year ban on that employer from being able to hire foreign workers under the IMP. However, while the consequences to an employer for being found non-compliant changed on December 1, 2015, the way in which IRCC assesses whether non-compliance has occurred remains substantially the same. The Administrative Monetary Penalty Regime Under IRCC’s AMP regime, employer non-compliance is divided … Read More
Priority Processing in LMIA Applications
Labour Market Impact Assessment (“LMIA“) applications typically take 1-4 months to process. However, the Department of Employment and Social Development Canada (“ESDC“) processes LMIAs for in-demand occupations (skilled trades), highly paid occupations (top 10%) or short-duration (120 days or less) entries within a 10 business day service standard. High-Demand To be considered a High-Demand LMIA, the position must be for a skilled trade on the list of eligible occupations below, and the wage being offered for the position must be at, or above, the provincial / territorial median wage where the job is located. Tables about unemployment, Median wages, 10-day speed of service. NOC 2006 NOC 2011 Occupation Title 7212 7202 Contractors and supervisors, electrical trades and telecommunications occupations 7215 7204 Contractors and supervisors, carpentry trades 7219 7205 Contractors and supervisors, other construction trades, installers, repairers and servicers 7271 7271 Carpenters 7216 7301 Contractors and supervisors, mechanic trades 7217 7302 Contractors and supervisors, heavy equipment operator crews 8211 8211 Supervisors, logging and forestry 8221 8221 Supervisors, mining and quarrying 8222 8222 Contractors and supervisors, oil and gas drilling services 8241 8241 Logging machinery operators 8252 / 8253 8252 Agricultural service contractors, farm supervisors and specialized livestock workers 9211 9211 Supervisors, mineral and … Read More
Administrative Monetary Penalty Regime Coming to Foreign Worker Program
On July 1, 2015, the Government of Canada published regulations in the Canada Gazette that introduce an Administrative Monetary Penalty (“AMP“) regime into the Temporary Foreign Worker Program (“TFWP“) and the International Mobility Program (“IMP“). Both Citizenship and Immigration Canada (“CIC“) and the Ministry of Employment and Social Development (“ESDC“) will administer the AMP. In addition, the regulations will replace the exiting two-year ban period for employer non-compliance with 1, 2, 5, 10 year, and permanent bans. The amendments will take effect on December 1, 2015. The Administrative Monetary Penalty Regime Under the new AMP regime, employer non-compliance will be divided into three types of violations. Type A violations will include where an employer: is unable to demonstrate that any information that it provided in respect of a work permit application was accurate during a period of six years beginning on the first day of the foreign national’s employment; did not retain document(s) that relates to employer compliance with cited conditions during a period of six years, beginning on the first day of the foreign national’s employment did not have sufficient resources to pay a live-in caregiver(s); could not demonstrate that any information that it provided for a Labour Market Impact Assessment (“LMIA“) application was … Read More
Federal Court Affirms New ESDC Internal Part-Time Recruitment Policy
In January 2015 the Federal Court released its decision in Frankie’s Burgers Lougheed Inc. v. The Minister of Employment and Social Development Canada, 2015 FC 27 (“Frankie’s Burgers“). Frankie’s Burgers is one of the first Federal Court decisions involving an employer seeking judicial review of a decision of the Ministry of Economic and Social Development Canada (“ESDC“) to not issue a positive Labour Market Impact Assessment (“LMIA“), which was then referred to as a Labour Market Opinion (“LMO“). Frankie’s Burgers should be read by all representatives and employers who submit LMIAs. In my opinion, the case shows that the Federal Court seems prepared to show much greater deference to ESDC in its administration of the Temporary Foreign Worker Program (the “TFWP“) than it does to both Citizenship and Immigration Canada and the Immigration and Refugee Board. Lawyers who were anticipating that the Federal Court would force ESDC to change some of its (often internal and secretive) policies should also take pause.