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.
Owner Operator LMIAs
One of the less understood recruitment exemptions in the Labour Market Impact Assessment stream is the exemption for Owner / Operators of a business. The Employment and Social Development Canada website states: Category: Owners/Operators Description: The owner/operator must demonstrate that he is integral to the day-to-day operation of the business and will be actively involved in business processes/service delivery in Canada. In such instances, greater consideration should be given to demonstration by the applicant (owner/operator) that such temporary entry will result in the creation or retention of employment opportunities for Canadians and permanent residents and/or skills transfer to Canadians and permanent residents. Variation: No advertising or recruitment is required. Applicability: All Provinces The Temporary Foreign Worker Program Manual previously stated: The ESDC wiki states: The wiki makes it clear that the following key conditions apply to Owner / Operator LMIAs: ESDC must be satisfied that the foreign national is or will be a principal owner or co-owner of the business in Canada. The company must prove the foreign natinoal’s shareholdings. [redacted] When assessing labour market factors, the focus is on job creation/retention and/or skills transfer. For co-owners, the focus is on job creation / retention and/or skills transfer. For High-Wage … Read More
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 – 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.
Borderlines Podcast #25 – Protecting Foreign Workers and Employer Compliance Inspections, with Meera Thakrar
The Government of Canada, as well as several provincial governments, have introduced several measures to protect temporary foreign workers and maintain the integrity of Canada’s foreign worker programs. Meera Thakrar is a Canadian immigration lawyer whose practices focus on helping companies recruit and retain foreign workers. Meera joins Peter Edelmann, Deanna Okun-Nachoff and Steven Meurrens to discuss various measures that different levels of government have introduced to protect foreign workers, challenges do governments face in this task and how employer compliance inspections work. 2:15 – Deanna discusses vulnerabilities that caregivers face. These include nonpayment of wages, excessive hours and more. What aggravates the situation is that because caregivers typically seek permanent residency and reporting abuse could potentially jeapordize this. 4:30 – What are some of the motivations of caregiver employers who exploit their foreign workers? What are some possible solutions to reduce the vulnerability of caregivers? 10:20 – Do what extent does the caregiver program deflate Canadian wages? To what extent does the fact that foreign workers provide cheap labour, making goods and services affordable, create a disincentive to stricter enforcement of foreign worker rights. 12:20 – An overview of how the government’s enforcement of compliance in the Temporary Foreign … Read More
Borderlines Podcast #24 – The Temporary Foreign Worker Program, with Kyle Hyndman and Meera Thakrar
The Temporary Foreign Worker Program, also known as the Labour Market Impact Assessment, is the main program through which Canadian companies hire temporary foreign workers. We discuss numerous aspects of obtaining Labour Market Impact Assessments, including prevailing wage, recruitment, transition plans, processing times, job match, the Global Talent Stream and the Owner – Operator LMIA. Kyle Hyndman and Meera Thakrar are both Canadian immigration lawyers whose practices focus on helping companies recruit and retain foreign workers. 3:00 – What are the first questions or things that Kyle and Meera tell Canadian employers that want to apply for Labour Market Impact Assessments? 3:57 – What is the difference between the Temporary Foreign Worker Program and the International Mobility Program? 8:00 – Why are companies generally reluctant to obtain Labour Market Impact Assessments? 8:20 – What are the recruitment requirements for a Labour Market Impact Assessment? 12:50 – What is Job Match? 19:00 – What do companies have to show and demonstrate through the recruitment process? 23:20 – What is the wage requirement for a LMIA? What is the prevailing wage? 25:00 – Do employers hire foreign workers to undercut Canadian wages? 26:30 – Can employers of foreign workers offer raises or … Read More
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
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.